In the News
DBMS Lawyers Score Wins in Recent Cases

In recent cases, DBMS lawyers obtained successful results on behalf of their clients.

On October 29, 2010, a jury in Cobb County, Georgia, outside Atlanta, returned a unanimous verdict in favor of Ford Motor Company, represented by Mark Boyle and John Krivicich, in an alleged "seatback collapse" case involving the death of a 76 year-old Georgia woman.

Mary Reese was the restrained driver in her 1994 Ford Tempo traveling eastbound at 25 miles per hour on a two-lane Georgia highway when the Tempo was struck from behind by a 58,000 pound gravel truck traveling at 45 miles per hour. The Tempo was instantaneously accelerated to 43 miles per hour and went off the roadway and down an eleven foot embankment, coming to a stop in a grove of trees more than a football field away from the impact. Though Mrs. Reese was alert and oriented immediately after the accident, she died from injuries caused by the accident twenty-two days later.

Her estate claimed that the driver's seat seatback collapsed in the rear impact, sending her into the rear seat where Mrs. Reese suffered an ultimately fatal brain injury and a thoracic fracture causing paralysis below her waist. Ford proved that the seatback yielded in the accident to absorb harmful energy, and that Mrs. Reese did not strike the rear seat, nor suffered a head injury. Instead her thoracic fracture and paralysis were caused by vertical forces through her spine as the Tempo "bottomed out" in a ditch below the embankment. Her death was the likely product of complications from that injury and surgery thereafter.

Mrs. Reese's estate asked the jury to award $15 million, and additional punitive damages under Georgia law. The jury deliberated eight hours before returning a verdict for Ford.

The case was a retrial after an original jury verdict for $3 million to the plaintiff in 2007, which was reversed on appeal by the Georgia appellate court, necessitating a retrial. Donohue Brown did not handle the original trial, being asked by Ford in August 2010 to handle the second trial.

On October 8, 2010, the Appellate Court of Illinois, First District, affirmed a jury verdict in favor of a medical corporation and an ophthalmologist represented by Richard B. Foster, Karen Kies DeGrand and Timothy L. Hogan.

In this informed consent case, DBMS attorneys successfully defendant their clients against allegations that an ophthalmologist and his staff failed to determine that the plaintiff, a candidate for LASIK surgery, had unusually large pupils in dim light and, according to the standard of care prevailing at the time of the treatment, should have received warning of an enhanced risk of post-surgery nighttime vision problems. The plaintiff contended that, at several office visits prior to two LASIK procedures in l998 and l999, the physician and his staff did not measure the plaintiff's pupils in conditions dark enough to disclose the plaintiff's allegedly abnormally large pupils. Plaintiff acknowledged that, prior to both surgeries, she received, read, understood and signed written informed consent documents detailing the risk of nighttime vision problems as well as significantly more serious problems that could result from LASIK surgery. The plaintiff contended, however, that she was told she was a perfect candidate for LASIK, and that she would not have proceeded with the procedures had she known of any enhanced risk.

At trial in the Circuit Court of Cook County, the defendants presented evidence establishing that plaintiff's pupils were repeatedly and correctly measured before the surgeries, and that, given her normal pupil size, no enhanced risk existed. The defendant ophthalmologist denied that he had told plaintiff that she was a perfect candidate for LASIK or that she could disregard the risks detailed in the consent forms. The defendants also refuted plaintiff's theory of causation with the testimony of the defendant ophthalmologist and of a retained expert witness, a world-renowned ophthalmologist who had conducted studies disproving plaintiff's theory of causation. In addition, the defense experts linked plaintiff's larger pupil size in the years after the surgeries to medications she was taking. The jury returned a verdict for the defendants.

On appeal, the parties battled over the propriety of the trial court's evidentiary rulings with respect to the admission of expert testimony, including the qualification of the defense witnesses to testify that various medications caused plaintiff to develop large pupils, the factual foundation for that testimony and the presentation of literature that post-dated the surgeries to refute plaintiff's causation theory. The appellate court rejected all of plaintiff's arguments. Ruling that the plaintiff had the burden of proving that the allegedly undisclosed risk had materialized, the panel found that the trial court correctly allowed the defense expert witness to discuss post-event literature, because it rebutted plaintiff's causation theory. The court noted that the jury may have resolved the case simply by concluding that the defendants had correctly measured plaintiff's pupils. In light of the general verdict and absence of special interrogatories, plaintiff was foreclosed from attributing the verdict any of the alleged errors pertaining to the admission of expert testimony.

On October 19, 2010, a Cook County jury returned a defense verdict for a pain management specialist represented by Sherri M. Arrigo and Cortney S. Closey.

On October 19, 2010, a Cook County jury returned a defense verdict for a pain management specialist represented by Sherri M. Arrigo and Cortney S. Closey. The plaintiff, a 53-year-old married father of three children, who worked as a commercial truck driver, underwent an elective sphenopalatine nerve block performed by the firm’s client, a pain management specialist, to treat chronic migraine headaches. The plaintiff previously underwent nine nasal surgeries and a variety of pain mediations in an attempt to alleviate the headaches with no success. The sphenopalatine block was performed with a TAC solution, consisting of Tetracaine, Lidocaine and Cocaine. Approximately ten minutes following the procedure, the plaintiff began to complain of light-headedness, nausea and stomach pains and his vital signs were abnormal. The plaintiff was instructed to lay back and cool compresses were applied to his head. The plaintiff’s vital signs thereafter improved; however, approximately twenty minutes later, the plaintiff was very pale and began to complain of severe headache and shortness of breath and there was evidence of fluid in the lungs. The plaintiff’s vitals were taken and showed an elevated blood pressure and pulse and low oxygen saturation levels. An ambulance was called and the plaintiff was taken to a nearby emergency room and diagnosed with a subendocardial myocardial infarction, or a mild heart attack, secondary to Cocaine. The plaintiff remained at the hospital for three days. The plaintiff claimed the heart attack was a life-changing event, leaving him anxious and fatigued with difficulty sleeping and constant fear of sudden death from another heart attack.

The plaintiff alleged that the firm’s client negligently performed the sphenopalatine block using TAC solution. According to the plaintiff’s expert, the TAC should not be used in patients with a history of hypertension because Adrenaline and Cocaine act to constrict the blood vessels, increasing the risk of heart attack. The plaintiff also alleged that the nine prior sinus surgeries created scar tissue, which allowed for a rapid uptake of the Cocaine solution. The defense successfully contended that while the plaintiff suffered a heart attack, it was a remote and unforeseeable risk of the procedure. The defense expert testified that TAC solution is appropriate to use on patients with controlled hypertension, such as the plaintiff. The defense expert also testified that scar tissue is less vascularized than mucosa, and therefore, acts to restrict the absorption rate of the solution. According to the defense expert, the heart attack was an unpredictable, idiosyncratic reaction to medication. Plaintiff’s counsel suggested in closing argument that the defendant’s records were altered and therefore unreliable, which the defense denied.

Over the defendant’s objection, the jury was given a “missing evidence” instruction because no prescription for the TAC solution was contained in defendant’s records, permitting an inference that the evidence would have been adverse to the defendant. Notwithstanding, the jury deliberated for one hour over lunch and returned a unanimous verdict in favor of the defendant.

On April 16, 2010 a Cook County jury returned a defense verdict in favor of the firm's client, a pain management specialist, represented by Sherri M. Arrigo and Timothy L. Hogan.

On April 16, 2010, a Cook County jury returned a defense verdict for a pain management specialist represented by Sherri M. Arrigo and Timothy L. Hogan. Plaintiff's decedent, a 52-year old married mother of four children who worked as a secretary at the local high school, underwent an elective cervical epidural steroid injection performed by the firm's client, a pain management specialist, at Tinley Woods Surgical Center, to treat neck and arm pain caused by degenerative arthritis. The co-defendant anesthesiologist provided conscious sedation for the injection, which was scheduled to be an outpatient procedure. There were no apparent complications noted during the procedure and the patient was transported to the recovery room per wheel chair in stable condition at 11:55 a.m. The patient was able to move into a recliner chair and conversed with staff upon arrival to the recovery area. A nurse briefly left the room to obtain a thermometer and when she returned to the patient's bedsideat 12:00 to 12:05 p.m., the patient was unresponsive, cold to touch, pulseless and not breathing. A Code was called and the co-defendant anesthesiologist intubated the patient and she was transported by ambulance to a nearby hospital. Upon arrival at the emergency department the endotracheal tube was found to be malpositioned and was replaced. The patient never regained consciousness and died the following day after being removed from life support. An autopsy revealed a mildly enlarged heart and a needle puncture to the dura (covering of the spinal cord) directly under the surgical area. The cause of death was noted as hypoxic ischemic encephalopathy due to hypoxia due to status post cervical epidural steroid injection. Plaintiff claimed that the firm's client negligently failed to recognize the puncture in the dura and inadvertently injected Lidocaine into the subdural space, causing a delayed "high spinal" effect which caused the cardiopulmonary arrest in the recovery room. Plaintiff also proceeded against the firm's client only under a theory of res ipsa loquitur, which permits a rebuttable presumption of negligence where the event ordinarily would not occur in the absence of negligence and the instrumentality that caused the injury is under the defendant's exclusive control. Plaintiff further claimed that the co-defendant anesthesiologist negligently misplaced the endotracheal tube in the esophagus, contributing to cause the death. The plaintiff's expert admitted under cross-examination that a puncture of the dura can occur absent negligence but testified that the defendant should have recognized it. The defense argued that there was no indication of a puncture of the dura during the procedure, fluoroscopy images confirmed the needle was properly placed in the epidural space, there was no evidence that anything was injected into the subdural space and Lidocaine was used only to numb the skin prior to the procedure and therefore could not have found its way into the subdural space. The defense further argued that the cardiopulmonary arrest occurred due to a sudden cardiac arrhythmia caused by hypertensive cardiovascular disease with left ventricular hypertrophy in a patient in the post-operative state. Counsel for the co-defendant argued that the patient suffered irreversible brain injury prior to the resuscitation, the endotracheal tube was properly placed by the anesthesiologist as confirmed by multiple observers, and the tube most likely became dislodged during transport to the hospital. In closing argument, plaintiff asked the jury to award $8 million. After deliberating for several hours, the jury returned a not guilty verdict in favor of the firm's client but found against the co-defendant for $2.91 million.

On March 17, 2010, the United States District Court, Northern District of Illinois, in a twenty-page written opinion applying Illinois law, granted summary judgment in favor of the firm’s client, a major motor vehicle manufacturer, represented by John A. Krivicich and Michael J. Borree.

Plaintiffs David Show and Maria Federici were the driver and passenger, respectively, in a 1993 Ford Explorer that was in a “T-bone” intersection collision with another vehicle, causing the Ford Explorer to roll over. Plaintiffs contended that the Explorer was defective and unreasonably dangerous because it rolled over after a low-speed collision with another vehicle. Plaintiffs were Chicago Mercantile Exchange traders, and claimed extensive lost income, as a consequence of the physical injuries they sustained in the accident, and sought damages for those injuries, medical bills and the like, as well. Plaintiffs disclosed two expert witnesses, one on injury causation, and one on damages, but no expert witness as to the alleged defects in the Ford Explorer that caused it to roll over in the accident, prompting plaintiffs’ injuries. Plaintiffs contended that under the Illinois Supreme Court opinion in Mikolajczyk v. Ford Motor Company, they were proceeding under a “consumer expectation” theory of liability as to Ford, and no liability expert needed to be called by them to prove their prima facie case. Plaintiffs also contended that the mere fact of the accident, a rollover after a low-speed collision between vehicles, was itself evidence of defect, and adequate to send the case to the jury, without a liability expert witness.

The United States District Court, the Honorable Magistrate Morton Denlow, rejected plaintiffs’ claims and granted summary judgment to defendant Ford. The Court concluded that when a plaintiff proceeds under the consumer-expectation test, he must present expert testimony to establish a prima facie case of strict product liability when the claim involves technical knowledge beyond the common knowledge and experience of jurors. A plaintiff cannot establish a defect through circumstantial evidence of the accident alone if an intervening force “could have caused the accident.” The Court held that plaintiffs needed expert testimony to assist a jury when determining that a defect in the Explorer existed at the time it left defendant’s control, and that they need expert testimony to establish that it was a defective condition in the Explorer, and not the intervening collision with the other vehicle in the intersection, that caused the Explorer to roll over. Without expert testimony, the jury would be left to speculate from the accident alone that the Explorer contained an unreasonably dangerous defect.

The jury could not be expected to understand the dynamics of vehicle stability based on their common experience. Such evidence constituted “scientific, technical, or other specialized knowledge.” A lay jury could not, without engaging in speculation, consider the evidence plaintiffs presented and determine whether a defective condition in the Explorer caused it to roll over in the circumstances of the accident. Nor could the jury have a basis to conclude that such a condition existed when the vehicle left defendant’s control. Even if a defect could be inferred from the accident itself, it could only be inferred by an expert having knowledge of vehicle design who could identify the defect and eliminate secondary causes.

Similarly, the Court rejected plaintiffs’ claim that the Explorer defect could be proved merely by the fact of the accident itself, as a form of res ipsa loquitur. The Court stated that it cannot say here “as a matter of common sense or common experience” that a rollover could not occur after a collision in the absence of a defect. Plaintiffs needed a qualified expert to testify to a defective condition in the Explorer at the time it left defendant’s control; the mere fact of the accident was insufficient proof in that regard.

Finally, in the absence of expert testimony on defect and causation, plaintiffs also could not make out a claim of negligence by defendant. Summary judgment was appropriately entered on that count as well.

On February 1, 2010 a Cook County jury returned a verdict in favor of the firm’s client, a gastroenterologist, represented by Anthony M. Pinto and Edward E. Fu.

On June 12, 2003, plaintiff's decedent was admitted to a local community hospital with abdominal pain and ascites. She was initially diagnosed with acute hepatitis of unknown etiology. The defendant gastroenterologist, after ruling out common causes of liver dysfunction, questioned whether the decedent had Budd-Chiari Syndrome, an extremely rare disease involving occlusion of the hepatic veins draining the liver. For that reason, the defendant gastroenterologist ordered a liver biopsy to rule in or rule out Budd-Chiari Syndrome and to assist in formulating a treatment plan. However, the liver biopsy could not be performed secondary to a coagulopathy that was identified on blood work. As a result, the defendant gastroenterologist recommended transfer to a nearby hospital, where a transjugular liver biopsy could be performed. The decedent’s family declined the recommendation, and instead undertook research which ultimately led to a request to transfer the decedent to the University of Chicago Hospitals. Unfortunately, no beds were available at the University of Chicago Hospitals. After several days, the decedent was discharged with instructions to present to the University of Chicago Hospitals through the Emergency Department, where she would be admitted.

On June 23, 2003, the decedent was admitted to the University of Chicago Hospitals. The following day, a transjugular liver biopsy was performed, which confirmed the diagnosis of Budd-Chiari Syndrome. Subsequently, an open liver biopsy was performed, which determined that the decedent was not a candidate for a liver transplantation because she had minimal necrosis and no cirrhosis. As a result, she was scheduled for a TIPS procedure, which was performed on June 30, 2003. Shortly after the TIPS procedure, the decedent became septic, leading to multi-system organ failure and her death on July 2, 2003.

Plaintiff alleged that the defendant gastroenterologist was negligent in failing to timely transfer the decedent to a tertiary care center, where she could receive a “team approach” for her Budd-Chiari Syndrome. Plaintiff claimed that, as a result, time was lost which prevented the health care providers at the University of Chicago Hospitals from saving the decedent’s life. The defense contended that the defendant gastroenterologist acted within the standard of care in timely diagnosing Ms. Ellis’ Budd-Chiari Syndrome and appropriately recommended transfer to a local hospital where the decedent could have received all necessary treatment, including a transjugular liver biopsy and a TIPS procedure.

In closing argument, plaintiff’s attorney asked the jury to award $16 million. After approximately two hours of deliberation, the jury returned a verdict in favor of the defendant gastroenterologist.

On January 14, 2010, a Cook County jury returned a not guilty verdict for a pathologist represented by Sherri M. Arrigo.

On January 14, 2010, a Cook County jury found in favor of the firm's client, a pathologist represented by Sherri M. Arrigo. Plaintiff's decedent, 9 year-old Demitry Sanchez, underwent removal of a mass in the left thigh at Norwegian American Hospital on August 6, 2003 after bumping his thigh on a futon couch. The surgeon's impression was of a left thigh hematoma with sub-fascial cyst. The mass was sent to pathology and the pathology slides were reviewed by the defendant pathologist. After reviewing the slides and speaking with the surgeon, the defendant issued a final pathology report indicating benign findings consistent with a hemorrhagic cyst. In March 2004, the left thigh mass re-occurred and the child was diagnosed with Stage IV cancer that had spread to the lungs. Despite aggressive treatment with surgery and chemotherapy, the child died of the disease in September 2005. Plaintiff alleged that the defendant negligently misread the August 6, 2003 pathology slides, causing a seven-month delay in diagnosis. Plaintiff's expert opined that the cancer would have been Stage I or II if diagnosed in August 2003 and the child would have survived with proper treatment. Defendant acknowledged that, in retrospect, the August 6, 2003 slides did show cancer, which was not diagnosed by the defendant. The defense argued, however, that the defendant had nonetheless complied with the standard of care because her interpretation of the slides as benign, although later found to be erroneous, was reasonable based on the information available at that time. The plaintiff's pathology expert admitted on cross-exam that pathology is an imperfect science, that pathologist's deal with limited information, that benign and malignant conditions can look similar under the microscope, and that a pathologist can miss a cancer diagnosis without being negligent. The defendant further argued that the child's had a particularly virulent and aggressive cancer that never responded well to any treatment and that the cancer most likely had already metastasized in August 2003; therefore, the seven month delay in diagnosis did not contribute to Demitry's death. In closing argument, plaintiff asked the jury to award approximately $8.5 million. After several hours of thoughtful deliberation, the jury returned a verdict for the defendant.

On December 19, 2009, Rick Foster and Mike Borree ended a two-week trial with a hung jury in the case of a 2 year old who allegedly died of severe dehydration and bowel intussuception in the emergency room.

Plaintiff, the Estate of Owens, alleged that 2 year old Jahmari Owens was brought to the emergency room with cramping pain and vomiting and severe dehydration, and that the defendant emergency medicine physician failed to adequately resuscitate the child, resulting in a code and the child's death in the ER. The defendant maintained that the intussuception was early in its course, was grossly atypical in its presentation, and that the child was not severely dehydrated, but instead that the child had died of aspiration of vomit, which induced a fatal bronchospasm. The plaintiff requested $5 million in damages. After three days of deliberations, the jury was unable to reach a unanimous verdict, and a mistrial was declared. The case will be retried.

On December 10, 2009 a Cook County jury returned a defense verdict in favor of the firm's client, a bariatric surgeon represented by Sherri M. Arrigo and Anthony M. Pinto.

On December 10, 2009, a Cook County jury found in favor of the firm's client, a bariatric surgeon represented by Sherri M. Arrigo and Anthony M. Pinto. Plaintiff's decedent, a 45-year old employed single mother, underwent Roux-En-Y gastric bypass surgery performed by the defendant on December 8, 2004. On post-operative day 2, the patient developed fever and tachycardia. The defendant ordered diagnostic studies which did not reveal an anastomotic leak. The defendant diagnosed and treated a urinary tract infection, the patient improved and was discharged on December 12, 2004. On December 16, 2004, the patient was transported by ambulance to the emergency room at another hospital with complaints of bleeding from the incision and abdominal pain. The emergency room physician examining the patient noted some clear serosanguinous drainage from the wound but no signs of infection. The patient was discharged with instructions to follow up with her surgeon the next day. On December 17, 2004, the patient appeared at the surgeon's clinic without an appointment. Clinic staff took vital signs which revealed an elevated heart rate and lower oxygen saturation and documented the patient's complaint of abdominal pain, rated 7 on a scale of 1-10. The surgeon was not in the office and did not see the patient that day but did see her for a scheduled post-operative visit at the clinic on December 20, 2004. On December 20, the patient continued to have mild tachycardia and lower oxygen saturation and the surgeon noted clear drainage from the wound, consistent with a seroma. A seroma is not an infection but is a generally benign fluid drainage that generally resolves on its own. Seromas occur in 20-40% of patients after gastric bypass surgery. In addition, the surgeon noted edema (swelling) in the lower extremities and prescribed medication to treat fluid overload. No pain complaints were noted in the record. The patient appeared for a scheduled follow-up visit on December 29, 2004, at which time the surgeon noted she had lost 33 pounds, the seroma drainage had decreased remarkably, there was no indication of infection, she was tolerating her pureed diet and she was doing "extremely well." No vital signs were documented for this visit. The surgeon requested that the patient return for follow-up in 3 months. On January 1, 2005, the patient complained of shortness of breath, paramedics were summoned and the patient suffered a cardiorespiratory arrest while en route to the hospital. Resuscitation efforts were unsuccessful and she was pronounced dead in the hospital emergency room that evening. An autopsy was performed at the family's request 5 days after the death. The cause of death per the autopsy report was pulmonary embolus and "empyematous peritonitis."

The decedent's friends and family members testified that from the time of discharge from the hospital after surgery until the time of death, the decedent became more and more ill, was unable to keep down any food without vomiting, unable to ambulate, increasingly short of breath and complaining of severe and worsening abdominal pain and having green-yellow pus discharge from the surgery incision. The plaintiff's controlled bariatric surgery expert opined that the peripheral edema, tachycardia, lower oxygen saturation and abdominal pain should have led the surgeon to suspect DVT and abdominal infection. The plaintiff's expert opined that the decedent had an intra-abdominal infection and bilateral deep venous thrombosis (DVT) at the time of the two post-operative visits to the surgeon. The plaintiff's expert testified that the patient's immobility due to ongoing infection contributed to cause the DVT which eventually led to the pulmonary embolus and death. Plaintiff alleged that the surgeon negligently failed to perform and appropriate history and physical exam, including vital signs, at the two post-operative visits, failed to order venous doppler studies to diagnose and treat DVT and failed to order an abdominal CT scan to diagnose and treat intra-abdominal infection. It was undisputed that infection, DVT and pulmonary emboli are known complications of gastric bypass surgery which can happen absent negligence. It was undisputed that the patient died from pulmonary emboli and that the pulmonary emboli (PE) most likely emanated from blood clot in the legs (DVT) but the defense denied that there was reason to suspect DVT or PE and denied that there was any indication to order a CT scan or venous doppler studies. The plaintiff's expert admitted on cross-exam that the defendant's entries in the medical records did not suggest DVT or intra-abdominal infection on December 20 or December 29 and that based on the records, there was no indication to order a CT scan or venous doppler studies on those dates. The plaintiff's expert further admitted on cross-exam that there was "a complete disconnect" between the medical records and the family's testimony. The defense also argued that, despite the autopsy findings, there was no intra-abdominal infection. The defense contended that what appeared as "pus" to the pathologist at the time of the autopsy was, in fact, benign seroma fluid that had gelled and discolored because the patient had been dead for 5 days and was already embalmed at the time the autopsy was performed. The defense argued that the sole proximate cause of the death was a pulmonary embolism, an unpredictable and unpreventable known complication of surgery.

Plaintiff asked the jury to award in excess of $3.6 million. After deliberating for less than one hour, inclusive of lunch, the jury returned a verdict for the defense

On November 24, 2009, Rick Foster and Tim Hogan received a verdict in favor of an emergency medicine physician sued in a case brought by a pediatrician who suffered an MI.

Plaintiff, a pediatrician, alleged that the defendant, an emergency medicine doctor, failed to diagnose an ST elevation MI, and failed to call for an emergent angioplasty, resulting in a claim of extensive heart damage and disability from the plaintiff's further practice of medicine. Defendant demonstrated that the patient did not meet criteria for an acute STEMI, and that the patient's infarct had begun the day before, when the patient began to experience epigastric pain. Thus, the patient was outside the window for effective intervention via angioplasty. Of note, the pediatrician was on staff at the hospital where the allegedly negligent treatment had taken place, and had actually served on hospital committees with the defendant doctor.

The plaintiff asked for $2.5 million in damages. The emergency medicine physician, along with a hospitalist and a cardiology consultant, were all acquitted by the jury after a three week trial.

On November 20, 2009, a jury in Perry County, Illinois rendered a verdict in favor of Ford Motor Company represented by Mark H.Boyle, John A. Krivicich and Charles S. Ofstein against plaintiff after a month-long trial.

Keith Herschbach was a driver of a 1993 Ford Escort who was restrained by a motorized, passive shoulder belt when his vehicle collided with a 1998 Dodge Stratus in an intersection collision on rural roads. The Stratus had run a stop sign, and Herschbach was not wearing the available manual lap belt. Herschbach died of his injuries a few hours after the accident.

Plaintiff claimed that the Escort was defective unless the manual lap belt was worn and that Ford failed to adequately warn that the restraint system was dangerous unless the lap belt was worn. Plaintiff was represented by prominent southern Illinois plaintiff lawyer, Bruce Cook, who examined four Ford employees, including its senior vice president for safety engineering, under adverse cross-examination over seven days. Similarly, he cross-examined Ford’s three retained expert witnesses for five days.

Counsel for the co-defendant Stratus driver also blamed the Escort’s restraint system even after admitting his client’s negligence and causation for the death.

Mr. Cook asked the jury to find Ford liable and to award $6 million in damages.

The jury rejected plaintiff’s claims after only two hours of deliberation, finding the co-defendant Stratus driver to be the sole cause of the death and assessing damages against him only of $1.5 million.

On November 17, 2009 a Cook County jury returned a defense verdict in favor of the firm's client, a plastic surgeon, represented by Anthony M. Pinto.

On April 15, 2005, plaintiff underwent an elective facelift performed by defendant plastic surgeon. Plaintiff alleged that defendant plastic surgeon’s surgical technique was negligent in that she inappropriately made the surgical incisions and failed to place the subcutaneous sutures in an appropriate location. Plaintiff further alleged that defendant plastic surgeon failed to obtain appropriate informed consent by advising her of the potential risks, complications and alternative forms of treatment. Plaintiff alleged that, as a result of the foregoing, she was left with significant disfigurement of her ears and painful and palpable subcutaneous sutures.

Defendant plastic surgeon argued that her surgical technique and informed consent procedure was appropriate and in compliance with the standard of care in all respects. Specifically, she argued that the surgical incisions were made in the appropriate location, as documented in post-operative photographs. She further argued that the subcutaneous sutures were placed as deeply as possible without causing the plaintiff to incur significant additional risk.

The jury returned a defense verdict in less than 30 minutes.

On August 4, 2009, the Illinois Appellate Court, First District, reversed the Circuit Court of Cook County’s decision asserting personal jurisdiction over an Oregon manufacturer of snow grooming-tractors, represented by John A. Krivicich, Karen DeGrand and Bryan Kirsch.

In February 2006, plaintiff, a Michigan resident, was allegedly rendered a quadriplegic while operating a snow-grooming tractor in Michigan. Plaintiff filed suit against the Oregon manufacturer of the tractor in Cook County. Defendant argued that it was not doing business in Illinois and that service of the complaint and summons on it was in violation of the due process clause of the 14th Amendment to the U.S. Constitution. Defendant’s motion to dismiss was denied in the Circuit Court of Cook County.

The Illinois Appellate Court reversed the decision of the Circuit Court of Cook County asserting personal jurisdiction over the Oregon manufacturer, finding that the manufacturer was not doing business in Illinois and could not constitutionally be sued in Illinois.

On June 3, 2009 a Cook County jury returned a defense verdict in favor of the firm's client, an obstetrician-gynecologist represented by Sherri M. Arrigo.

Plaintiff, a 45-year old divorced mother of two children, came to defendant's office in December 2003 and was diagnosed with a Bartholin gland cyst/abscess. The Bartholin glands are located on either side of a woman's vaginal opening and provide lubrication during sexual activity. Defendant initially prescribed antibiotics to treat the infection, then at the next visit, performed an incision and drainage of the abscess using a cruciate incision. This treatment was successful but several months later, the Bartholin's cyst/abscess reoccurred. Defendant recommended surgical excision of the gland due to the recurrent nature of the problem and a concern regarding possible cancer. Defendant performed the Bartholin's gland excision at Christ Hospital on March 29, 2009. At the end of the surgery, plaintiff developed a large hematoma which was drained by the defendant. At a follow-up office visit, defendant noted a small separation of the wound with a defect in the labia. Defendant referred the patient to a urogynecologist who diagnosed post-operative infection and recommended antibiotics and revision sugary to correct the labial defect. On April 27, 2004, defendant performed surgery at Christ Hospital to debride the wound, remove necrotic tissue and re-sew the wound to repair the defect in the labia. The urogynecologist assisted with the revision surgery. Defendant's operative report, dictated several months after surgery, indicated that the wound edges were well approximated without tension at the end of the revision surgery. At the first post-operative visit, however, the wound had once again separated and a small defect in the labia was noted.

Plaintiff alleged that defendant negligently recommended excision of the Bartholin's gland when a more conservative, less risky procedure known as marsupialization should have been performed. Plaintiff argued that excision of the gland should be done only as a "last resort" and that the risk of cancer was extremely remote as only 300 Bartholin gland cancers have been identified in the medical literature worldwide. Plaintiff alleged that defendant failed to advise her of her options prior to performing the excision surgery. Plaintiff further alleged that defendant improperly performed the excision surgery and that during that surgery he negligently removed a "huge chunk" of normal labia along with the cyst. Plaintiff also claimed that defendant subsequently altered/falsified the medical records to cover up his negligence. Plaintiff claimed that as a result of defendant's negligence, 2/3 of her labia is missing, leaving her "mutilated" and "hideously deformed" with severe pain, difficulty with urination, menstruation and vaginal dryness, and completely unable to engage in sexual relations.

The defense argued that excision of the Bartholin's gland is the treatment of choice for recurrent Bartholin cyst in a woman over age 40 due to the risk of cancer. Further, this patient was at increased risk of cancer due to her smoking history and history of cervical dysplasia. Here, defendant had already attempted a less risky procedure similar to a marsupialization but the problem had reoccurred. The plaintiff consented to the excision surgery after defendant properly advised her of her options. The plaintiff's expert had testified that the defendant employed an improper surgical technique by using an elliptical incision to excise the gland but the expert was impeached on cross-examination with an excerpt of a standard text that recommended utilizing an elliptical incision to excise the Bartholin gland. The defense further argued that defendant did not remove any portion of the labia and that when plaintiff developed complications after surgery, they were promptly diagnosed and treated by defendant within the standard of care. The loss of one Bartholin's gland should not significantly affect lubrication. The defense argued that the defect in the labia after the excision surgery was caused by recurrent infections in the area. The defect was appropriately repaired during the revision surgery but the wound again separated due to poor healing caused by plaintiff's recurrent infections and cigarette smoking. The permanent labial defect or missing piece of the labia was caused by the wound separation with retraction and scarring during the healing process. Furthermore, the permanent labial defect is only 2 cm, or less than one inch, and would not explain the plaintiff's current complaints.

Plaintiff asked the jury to award in excess of $1.7 million. After deliberating for less than one hour, inclusive of lunch, the jury returned a verdict for the defendant.

On May 15, 2009, a Winnebago County jury awarded a verdict in favor of defendant ophthalmologist represented by J. Kent Mathewson and Timothy L. Hogan.

Kent Mathewson and Tim Hogan successfully defended an ophthalmologist in a jury trial in Rockford. Plaintiff had alleged medical negligence against the defendant physician with regard to radial keratotomy surgery and the subsequent enhancements or revisions to that surgery. On May 15, 2009, the Winnebago County jury returned a defense verdict in favor of the defendant ophthalmologist and against the plaintiff after the plaintiff’s attorney requested $720,000 in damages. This is the third defense verdict obtained by Kent Mathewson and Tim Hogan in Winnebago County in the last two years.

On May 5, 2009, a Lake County, IL jury awarded a verdict in favor of defendant obstetrician represented by J. Kent Mathewson and Bryan J. Kirsch.

On May 5, 2009, Kent Mathewson and Bryan Kirsch obtained a defense verdict in a jury trial in Lake County. Plaintiff had alleged that a defendant physician was negligent in continuing a prescription for a hypertension medication which allegedly led to a premature delivery and in utero damage to the child including chronic kidney damage which would eventually require dialysis and transplant. The plaintiff asked the jury to return a verdict between $4.6 and $6.3 million dollars. After deliberating for more than five hours, the Lake County jury returned a defense verdict in favor of the defendant physician.

On May 5, 2009, a Cook County jury awarded a verdict in favor of defendant obstetrician represented by Sherri M. Arrigo and Richard H. Donohue.

On May 5, 2009, a Cook County jury returned a not guilty verdict in favor of the firm's client, an obstetrician. Plaintiff was admitted to Swedish Covenant Hospital to deliver her 6th child on March 15, 2001 at about noon, several days past her due date. Plaintiff had a history of three previous cesarian sections and two successful VBACs (vaginal birth after cesarian section). Upon admission, she was examined by the defendant obstetrician and a senior family practice resident who had been primarily overseeing her prenatal care. At that time, the cervix was 5 cm dilated and 75% effaced and the fetal head was engaged. Plaintiff was having only mild, irregular contractions. Plaintiff was Group B Strep positive and the plan was to administer IV antibiotics to prevent infection to the fetus before augmenting labor. Fetal monitor tracings were reassuring. The mother was allowed to ambulate for two hours before the membranes were ruptured and a fetal scalp electrode (FSE) and intrauterine pressure catheter (IUPC) were placed at about 6:30 p.m. At 7:30 p.m., she was examined by the defendant obstetrician and the cervix was 6-7 cm dilated, 75% effaced and the fetus remained at the 0 station. Shortly thereafter, the defendant became ill with a severe migraine headache and he telephoned the "moonlighter", an obstetrician employed by the hospital to be available on the labor and delivery unit to handle emergencies, answer questions, or cover deliveries if the patient's attending physician was unavailable for any reason. The defendant testified that he asked the moonlighter to take over care of the patient and to attend the delivery and be available if the resident or nurse had questions or concerns. The moonlighter testified that he never took over as the managing obstetrician but admitted that he agreed to cover the patient during the defendant's illness and to be available for the delivery and for any questions or concerns. At 8:30 p.m., a labor and delivery nurse telephoned the defendant in the on-call room, where he was lying down. The nurse requested an order for Pitocin to augment labor and also requested an epidural. The defendant approved the Pitocin and the epidural but instructed the nurse to "run it by" the "moonlighter". The nurse started Pitocin and an epidural was administered but the moonlighter was not consulted. Thereafter, no one attempted to contact the defendant. The resident and nurse continued to monitor the patient. The fetal monitor strip began to show recurrent decelerations shortly before 10:00 p.m. At 10:20 p.m., the mother was completely dilated and began to push. By 10:30 p.m., the decelerations were more frequent but variability remained good in between contractions. At 10:40 p.m., the nurse discontinued Pitocin due to non-reassuring fetal heart tracings. At 10:43 p.m., fetal bradycardia was noted and the "moonlighter" was called to attend the delivery. The "moonlighter" arrived at 10:46 p.m. and attempted to deliver the baby with forceps. The first forceps attempt did not deliver the child and Pitocin was re-started per order of the moonlighter. The child was delivered by forceps at 11:02 p.m. but was severely depressed at birth.

Plaintiff claimed that the defendant negligently failed to perform a cesarian section upon admission because plaintiff was not an appropriate VBAC candidate according to published guidelines Plaintiff further claimed that the defendant negligently failed to examine the patient at least every hour as required by her high risk status, Plaintiff further claimed that defendant negligently failed to perform a cesarian section after the 7:30 p.m. exam despite two episodes of fetal tachycardia and two late decelerations in a high risk patient who had failed to progress appropriately in active labor. Plaintiff argued that there was no obstetrician monitoring this high risk patient and that the defendant remained responsible for her management even after the telephone call with the moonlighter. The defense argued that the patient was an appropriate candidate for a trial of labor, the standard of care did not require a cesarian section upon admission or at 7:30 p.m., the patient was appropriately monitored by the nurse and the resident, she was monitored more closely due to her high risk status by the resident and by placing the IUPC and FSE, she was not in active labor until the membranes were ruptured, her labor progress was adequate, and there were no concerns regarding the mother or the fetus until after the defendant appropriately signed off to another qualified obstetrician.

It was undisputed that the fetus was normal upon the mother's admission to the hospital and that the child, now 8 years old, has severe cerebral palsy and will need life-long care secondary to a hypoxic ischemic insult that occurred during the labor and delivery. Plaintiff's obstetrical expert testified that the injuries were caused by repeated hypoxic episodes during labor leading to a loss of fetal reserve which manifested in the terminal fetal bradycardia at 10:43 p.m. On cross-exam, the plaintiff's neonatology expert agreed that the hypoxic ischemic injury occurred in the last 19 minutes prior to delivery during the episode of fetal bradycardia. The defense argued that the sole proximate cause of the injury was an occult cord prolapse - an unpredictable and unpreventable event that abruptly cut off blood flow through the umbilical cord during the last 19 minutes prior to delivery, depriving the baby's brain of oxygen. Plaintiff asked the jury to award $18 million. After deliberating for only one hour, the jury returned a verdict for the defendant.

On April 24, 2009, a Cook County jury awarded a verdict in favor of defendant surgeon represented by Stetson F. Atwood and Edward E. Fu.

Ms. Beeken alleged that defendant surgeon breached the standard of care in connection with a laparoscopic appendectomy performed on December 3, 2004. Ms. Beeken claimed that the surgeon failed to completely remove her appendix and left approximately 30 mm of tissue at the time of the initial surgery. Ms. Beeken claimed that this resulted in her developing stump appendicitis and requiring an additional appendectomy on March 23, 2007.

The defense contended that the surgeon complied with the standard of care with respect to his performance of the December 3, 2004 surgery and that it was proper to leave portion of the appendix, which is commonly referred to as the stump. The defense also contended that the size of the stump is irrelevant as there was no evidence presented at trial that there was an increased risk for the development of stump appendicitis associated with a longer or larger stump.

Plaintiff asked for $440,000. The jury returned a verdict for the defense.

On March 12, 2009, the Appellate Court of Illinois, First District, affirmed the entry of summary judgment in favor of a product manufacturer represented by Richard B. Foster, Karen Kies DeGrand and Bryan J. Kirsch.

Plaintiff filed a strict liability and negligence complaint against the defendant manufacturer for workplace injuries allegedly sustained while plaintiff was using a printing press. The defendant moved for summary judgment because it did not manufacture the product; rather, it was a successor corporation that had purchased the assets of a company that was the successor to the manufacturer of the printing press. The successor had filed for relief pursuant to Chapter 11 of the Bankruptcy Code. The selling corporation sought approval of a sale of the assets under Section 363 of the Bankruptcy Code, and the bankruptcy judge approved the sale and the proposed Asset Purchase Agreement after conducting a hearing on the sale motion. The bankruptcy judge found that the Asset Purchase Agreement was reached in good faith, and approved the sale of the assets that specifically excluded the assumption of any liabilities arising out of product liability litigation. On appeal, the appellate panel affirmed. It applied the general rule that a successor corporation is not liable for the debts or liabilities of a transferor corporation. Further, the appellate court ruled that none of the exceptions to the general rule applied in the context of this transfer of assets with the imprimatur of the bankruptcy judge.

©2005 Donohue Brown Mathewson & Smyth LLC
140 South Dearborn, Suite 800, Chicago, IL 60603
Phone (312) 422-0900     Fax (312) 422-0909