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Case Notes: February 2017

CASE NOTES

Summaries of recent legal matters in and around Chicago

Wm Hickey, Jr. v. Pace Suburban Bus Svc.

Cook County Case No. 12 L 8082

The 40-year old male Plaintiff motorcyclist was on a suburban state highway when an approaching bus made a left turn right in front of him. Plaintiff struck the bus and was thrown from his bike. He sustained multiple pelvic fractures requiring surgery and placement of pins and plates, a broken right femur and kneecap, and a separated shoulder. He developed compartment syndrome in the right leg which also required multiple debridements and surgeries, over an extended hospitalization, eventually leading to amputation of the leg below the knee. Additional knee surgeries ensued, followed by fitting for a prosthesis, and extensive physical therapy. All of this reportedly never eliminated lower back and hip pain due to an altered gait. Doctors testified that Plaintiff will likely need a knee and hip replacement at some point, as well as chiropractic treatment for the remainder of his life. Doctors also diagnosed depression and post-traumatic stress disorder requiring lifetime treatment. Past medical expenses were alleged to be approximately $725,000, along with approximately $1,200,000 in lifecare expenses and alleged lost wages of approximately $2,936,000 from his career as a municipal waste water treatment technician.

Plaintiff sued for negligence, alleging that the bus driver negligently failed to yield the right of way and failed to keep a proper lookout. The bus video surveillance system's video footage established that the approaching Plaintiff was visible for several seconds from the driver's seat before the bus driver turned in front of him.

Although the bus driver admitted he did not see the motorcycle until he was already in mid-turn, the Defense argued that Plaintiff was at fault. Based on expert opinion as to the video, the Defense argued Plaintiff was speeding at 25-30 mph in excess of the posted 40 mph speed limit and that Plaintiff would have been able to avoid the collision if he had been going 15-20 mph slower.

In response to Plaintiff's $12,000,000 settlement demand, the Defense offered nothing. This did not turn out to be a winning strategy. Plaintiff received $8,010,200, and this was after a 45% reduction, off the full verdict of $14,564,000, for contributory negligence.

DENTIST BITTEN IN LAWSUIT

BY PATIENT WHO SWALLOWED A TOOTH

Bert Abney, et al. v. Rhonda Khouri, D.D.S.,

Cook County Case No. 13 L 2154

The 45-year old male Plaintiff was having his all of his teeth extracted, for a fitting of full dentures, when he felt something go down his throat and cause him to cough. He allegedly told his dentist that he thought he had swallowed a tooth, but that she did not respond and finished the extractions, with him still coughing at the end. Over the next month and a half, Plaintiff went to the emergency room three times, complaining of chest pain and coughing. He was diagnosed with recurrent pneumonia and given antibiotics. Finally, a CT scan of his lungs showed a tooth in his left lung. Plaintiff thereafter had the tooth removed, incurring $78,000 in further medical costs. Despite a generally full recovery, Plaintiff was left with some residual scarring in his lung, although it was not expected to impair lung function.

The Defendant dentist simply denied the incident occurred. At trial, she contended that Plaintiff actually did not have any coughing and that all of Plaintiff's teeth were accounted for. The Defense argued that the tooth must have been aspirated at some time prior to the extraction procedure because Plaintiff was missing several crowns and some teeth when the procedure began.

Defendant made no settlement offer - not even medical costs. This did not prove to be a successful defense strategy. The jury returned a verdict of $400,000, including every dime of medical costs, plus $222,000 for past pain and suffering, and $100,000 for loss of normal life.

RAILROAD DIGS IN ITS HEELS

AND DERAILS CONDUCTOR'S RETALIATORY DISCHARGE CLAIM

Glen Armstrong, Sr. v. Burlington Norther Santa Fe Railway Co.

Cook County Case No. 12 C 7962

Plaintiff was a train conductor working for the Defendant railroad company. After being fired by Defendant, he sued, alleging that a reprimand for a uniform violation snowballed into a variety of retaliatory misdeeds against him including actual physical assault. The Defense vigorously and completely disagreed.

According to Plaintiff, he was verbally abused by a superior regarding a uniform violation in an office at Union Station. When he allegedly tried to leave this abusive situation, the supervisor slammed a door on him, crushing his knee and ankle and ankle (both of which later required surgery), and then prevented him from obtaining medical care for several hours. Thereafter, his employer allegedly threatened him with retaliation if he filed an injury report, and, after he filed the report, did fire him a short while after.

According to Defendant, Plaintiff was properly terminated for insubordination, dishonesty and misrepresentation. Defendant argued that video of part of the office discipline incident shows that the alleged physical assault never occurred, and moreover that it was physically impossible for the incident to have occurred as alleged. The Defense further argued that Plaintiff fabricated his claim to avoid discipline after he was removed from service for insubordination, and that Plaintiff was going to be terminated for insubordination and dishonesty, regardless of any injury report. Finally, Defendant argued that the alleged knee and ankle injuries were actually not injuries but were solely the results of pre-existing chronic degenerative arthritis.

With both sides entrenched, the matter went to trial. Twice. At the first trial, the jury deadlocked. At the second trial, Defendant received a directed verdict on Plaintiff's claim based on a delay of treatment, and the jury took only two hours to return a full defense verdict on the retaliatory discharge claim.

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