The Docket - September 2020 by Town Square Publications, LLC

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 27 No. 9 • September 2020

2020-2021 Foundation Board of Directors

2020-2021 Association Board of Directors

CONFERENCE ROOM For meetings only. Seats 16 – 20 comfortably During business hours (8 am – 5 pm) • Member- Free • Non-Member $150/1st hour. $50/hour after • Non-Member, Not-for-Profit: $25/hour

2020 LCBA OFFICE RENTAL PRICING

After Hours (5 pm – 9 pm) • Member - $25 per hour • Non-Member – Not Available • Non-Member, Not-for-Profit: $50 per hour

MEMBER CENTER “The Bar” Accommodates up to 100 people During business hours (8 am – 5 pm) Members (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served: Free • Self-Service reception or party (provide own alcoholic beverages): $50 per hour • Hosted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after Non-Members: (add $50/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $50 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after • Hosted beer & wine reception or party – Not Available Non-Member, Not-for-Profit: (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $25 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after • Hosted beer & wine reception or party – Not Available Association Committee Meetings (Conference Room or Member Center) Without beer & Wine - Free With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people) Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI). All rentals include free parking in our large, well-lit, 45 vehicle parking lot adjacent to the LCBA building.

Contact the LCBA Office at 847-244-3143 or info@lakebar.org

Contents THE DOCKET • Vol. 27, No. 9 • September 2020

FEATURES 10 Obtaining Personal Jurisdiction in Multi-State Medical Negligence Claims BY MICHAEL M. VIGLIONE

16 Better go check your Krautsack!

A publication of the

BY KEVIN MCCORMICK

20 Docket Interview with Charlene Quint 300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Sarah A. Kahn Kevin K. McCormick Hon. Raymond J. McKoski Tracy M. Poulakidas Stephen J. Rice Neal A. Simon Hon. James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator Katherine Montemayor Office Manager

AD SIZE 1/8 Page 1/4 Page 1/2 Page Full Page Inside Front or Inside Back Cover

Back Cover

ONE ISSUE

6 ISSUES

COLUMNS 2 President’s Page To Zoom or Not to Zoom BY PATRICIA L. CORNELL, PRESIDENT

4 The Chief Judge’s Page Change is the Law of Life BY CHIEF JUDGE DIANE WINTER

6 Bar Foundation Ready, Set, Paint!

26 In the Director’s Chair Help Wanted! BY DALE PERRIN, EXECUTIVE DIRECTOR

LCBA EVENTS IFC 2019 LCBA Office Rental Pricing 3 Grapevine 3 Calendar of Events 4 New Members 5 Art With a Heart 9 Fall Luncheons 19 Annual Shred Event 23 Lake County Candidates Forum 25 Lawyer Referral Service 27 Attorney Access Pass 28 Monthly Committee Meetings BC Member Reception

BY NICHOLAS A. RIEWER, PRESIDENT

8 Monthly Case Report 24 The Meeting Minutes June 18, 2020 BY KATHERINE S. HATCH, SECRETARY

12 ISSUES

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Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members. All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

To Zoom or Not to Zoom

don’t know about any of you but initially I was really excited about Zoom. I was able to finally see people after months of isolation. Then the announcement was made that we would be conducting court by Zoom and I was thrilled to get back into the swing of things. At first, I felt that Zoom court was amazing. From

Hon. Patricia Cornell President Joseph Fusz First Vice President Tara Devine Second Vice President Kathleen Curtin Treasurer Katharine Hatch Secretary Stephen J. Rice Immediate Past President David Del Re Thomas Pasquesi Dwayne Douglas Daniel Hodgkinson Hon. Jacquelyn Melius Craig Mandell

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The an access to justice perspective, it allows those without proper transportation to attend court easily. It also provides those that have a health issue or a disability a better option to attend court without the need to leave their residence. And it obviously allows court to continue during a pandemic, which helps those who need assistance from the court. However, after approximately two months, I have decided that Zoom court is more exhausting than in-person court, and I long for the “good ‘ole days.” I’m not referring to the “good ‘ole days” when Tom Gurewitz started practicing (when I was born) in front of Judge Smart in the one branch court that existed. I mean the “good ‘ole days” when people stepped foot into the courtroom and interacted with each other. It seems (according to my review of various articles online) that Zoom meetings and Zoom court are more taxing on a person. People are exposed to the blue screen for much longer; the

President’s Page

user is aware that others are able to constantly watch them, heightening the need to pay more attention (which isn’t always the case in an in-person meeting); and technical issues are never-ending, which increases the length of an already longer session. I’ve seen various articles about what to do and not to do on Zoom. Sometimes I feel like I’m the only one who has seen these articles. It is apparent to me that all participants constantly forget that there is a delay on Zoom. Lawyers are so eager to ask the next question on cross examination that they cut off a witness, and judges are so eager to move the call that they may accidentally cut off a litigant. Litigants don’t understand what is going on if it is their first Zoom experience, and they immediately start talking when they

BY PATRICIA L. CORNELL PRESIDENT join the courtroom. Most judges make an announcement regarding appropriateness in Zoom court. Participants are told to stay muted until their case is called, to dress appropriately, not to talk over one another, to be aware of their surroundings, etc. Litigants typically have problems logging on and constantly unmute themselves, which interrupts the call. However, so do lawyers. Participants are eating, smoking, napping, and walking around. Once a week a litigant is not wearing a shirt or is changing clothes in the background (and don’t think for one minute that lawyers haven’t done this as well). Litigants and lawyers have been driving while on Zoom. Participants have taken their devices into bathrooms while in court. Participants are clearly not cognizant that everything around

them is visible because their cameras are providing a wide-area view. Some participants don’t understand how to hold a device so that their face appears on the screen (all you see is their forehead or the top of their hair). Participants move their device’s camera in a fashion that allows for strange angles. This sometimes results in the camera showing the participant’s chest or lap instead of their face. The mute button is our worst enemy. Everyone forgets to unmute themselves. Everyone forgets to mute themselves. Comments are either made and heard by all or people are talking but nothing is heard. A majority of the talking during zoom is spent directing people to either mute or unmute themselves, including explaining how that is done. It takes a great deal of awareness by all to participate in a Zoom meeting or court. Everyone should be checking the camera angle, the mute button, the way they are sitting, over and over. Imagine the awareness issues for a host who is attempting to manage over 100 participants and maintain order. These two things alone are draining and don’t include a host’s other duties, including reviewing and filling out documents, signing documents, moving files around, working with clerks or employees, checking databases on the computer simultaneously, or attempting to present documents through screen sharing while running a hearing. Likewise, participants may be attempting to keep their children or family members at bay while

waiting on Zoom; lawyers attempting to manage 3 or 4 different courtrooms at the same time; communicating with their opposing counsel through chat on Zoom or by text, if the chat function isn’t working; or communicating with a client. Zoom is stressful for everyone and can be overwhelming at times. The reality is that Zoom court is a multitasking nightmare for all individuals involved, and it requires additional patience by everyone. My hope is that we can keep this in mind and work together to hold Zoom court and meetings in the most efficient and appropriate way possible. Currently, the virus has unfortunately rendered its verdict on the “to Zoom or not to Zoom” question.

The

birth of their grandson, Leo Henry Ronsman, born on July 21, 2020 to Emily and Dan Ronsman.

The

Grapevine

Judge Jorge and Meg Ortiz are proud to announce the

The Illinois State Bar Association’s Diversity Leadership Council has selected Salvi, Schostok & Pritchard attorney Eirene Nakamura Salvi as the recipient of the 20192020 Diversity Leadership Award. She is a co-chair and founding member of the Chicago Committee of the Japanese American Bar Association, and she also serves as an officer of the board of Lawyers Lend-A-Hand to Youth, an organization that promotes one-to-one mentoring and tutoring programs in disadvantaged Chicago communities. Born in Japan to a Japanese father and Mexican mother, Eirene moved to California with her family when she was a young child. She speaks English, Japanese, Spanish, and French.

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Calendar of Events

September 22 Lake County Update Membership Lunch Meeting Virtual, 12 pm September 29 Candidates Forum Virtual, 12 pm

Amy L. Gertler, Esq. & Hon. Helaine L. Berger, (Ret.)

It’s Settled. ®

family law mediation & arbitration

October 20 Pro-Bono Awards Luncheon Virtual, 12 pm October 22 & 23 Child Representative Training Seminar Virtual November 17 ARDC Update Membership Lunch Meeting Virtual, 12 pm August 15 – November 20 Art with a Heart Foundation Fundraiser

September 2020

Change is the Law of Life

ife can change how courtroom proceedings are conducted. This sentence is not as profound as the quote of “Change is the law of life” made by President John F. Kennedy back in 1963, but “change” is currently the law for how court proceedings will be conducted for the foreseeable future. One such change is a new court call for Arbitration and Mortgage Foreclosure cases starting August 10, 2020. For many years, the Circuit’s Probate judge had to juggle two separate calls to find enough calendar opportunities to set longer hearings and trials, often times having to schedule cases over multiple days and months. Arbitration cases will now

Welcome

New LCBA Members ATTORNEYS

Brian Baugh Storino, Ramello & Durlin Robert Holland Kelleher & Buckley, LLC Larsa Khanice Michna Law Group Tracey Lundgren Lundgren Law Office, P.C. Kyle Ruchim Katz, Goldstein & Warren

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be heard by one judge rather than the call being split between the probate and traffic court judges. One hearing judge will enhance the consistency of courtroom procedures as well as allow more accurate statistical reports to measure the efficiency and volume of the court call. The other part of the call, mortgage foreclosures, may have to handle a backload of matters once the Governor lifts the moratorium on the enforcement of orders of eviction for residential properties. Judge Charles Johnson will be the first judge to preside over the new call and has the expertise to make the call “zoom” along. Speaking of Zoom, the web-based video conferencing tool that everyone is now familiar with, a number of recent court proceedings via Zoom were interrupted by hackers and individuals who joined court sessions to post lewd and inappropriate animated videos and statements. This series of interruptions even included threatening posts directed towards others. As a result, the court administration and judges will be working to address this issue, which may include the establishment of stricter policies for entering into the Zoom-conducted courtrooms.

The

Chief Judge’s Page Also, by the time of publication for this edition of The Docket, the Circuit may have conducted the first criminal jury trial utilizing the new COVID protocols to conduct in person court proceedings. Juror summonses have been issued and much work has been devoted to establishing the COVID protocols for their attendance in court. Extensive preparations to ensure the safety of the jurors, parties, witnesses, attorneys and court personnel were undertaken before issuing the juror summonses. Courtrooms have been marked for socially distant seating, counsel tables have been re-arranged, and sneeze guards installed. Masks will be required unless a person is medically unable to wear a mask. Jurors will answer screening questions daily and have temperatures taken when they arrive for

BY CHIEF JUDGE DIANE WINTER jury assembly. Additionally, juror reporting times will be staggered to accommodate the socially distant seating set up in the Jury Assembly room. Many thanks to the efforts of the Jury Task Force co-chaired by Judge Mitchell Hoffman and Judge Victoria Rossetti. My office window facing east on the 8th floor of the Court Tower gives me a clear view of the COVID testing site located in the municipal parking lot at Sheridan Road and Water Street in Waukegan. Recently, the testing lines have been long and flowing steadily. Sometimes, it seems COVID will never end, but when I see the blue waters of Lake Michigan, the sails from sailboats and the waves from jet skis in between Zoom conference calls, I am confident we will get through this crisis and will be better prepared for the next threat to our justice system.

WHAT IS IT

Art with a Heart is a virtual art auction fundraiser for the Lake County Bar Foundation that replaces the biennial Gala that was canceled this year due to COVID 19.

BENEFICIARIES

Waukegan to College, 19th Judicial Circuit Self-Represented Litigant Program, Art Impact Project

WHEN

Beginning mid-August 2020 through November 20, 2020.

DETAILS:

• Beginning in August, the LCBF will sell 8” x 8” blank canvasses for $10 each to members, family members, co-workers, neighbors, professional artists, want-to-be artists, celebrities, and anyone walking past the office. • Buyers of blank canvasses will create their works of art on the 8 x 8 canvas and return them to the LCBA/LCBF office no later than October 26. • Artwork will be displayed on the LCBA/LCBF website, in the LCBA/LCBF Office and possibly other locations in Lake County. • Online bidding for each piece of art will begin at $25 and opens November 2 and closes November 20. • Online bidding will be open to everyone and anyone, including Grandma in Arizona, so spread the word. • Artwork can include anything as long as it is on or is attached to the 8 x 8 canvas. The more creative the better.

Self-Represented Litigant Program

Fundraiser

LAKE COUNTY BAR FOUNDATION

ART AUCTION

Heart

A VIRTUAL

Artwith a

September 2020

Contact the Bar office at 847-244-3143 or info@lakebar.org to purchase your blank canvas by September 30, 2020.

Ready, Set, Paint!

T’S ON!!! Our 2020 Gala will officially take place as a virtual art auction. The virtual art action will be a fun and interactive way for the LCBA/LCBF members to help us raise money for charity. We also encourage participation by non-members such as co-workers, family members, neighbors, professional artists, celebrities, judges, and as many children as we BOARD OF TRUSTEES Nicholas A. Riewer President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Jeffrey A. Berman Immediate Past President Jennifer L. Ashley Nandia P. Black Douglas S. Dorando Kristie Fingerhut Hon. Fred Foreman (Ret.) Joseph M. Fusz Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Joseph McHugh Joseph Morrison Michael G. Nerheim Michael Ori Shyama Parikh John Quinn, Sr. Melanie Rummel David Stepanich Hon. Henry C. Tonigan (Ret.)

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can get involved. The concept is relatively simple. By the time you read this article, the Lake County Bar Foundation will already have begun selling 8 x 8 blank canvases. The cost of the canvas is $10.00, and we would recommend the use of oil paints for creating your own Van Goes. (Okay, I was not an art major in college.) Please feel free to buy as many canvases as you want and distribute them to whomever you want. Oil paints are suggested, but if

BY NICHOLAS A. RIEWER PRESIDENT you can create a 3-D artwork, please feel free to do so. I would, however, not suggest taping a banana to the canvas, since that has already been done. (Search Italian artist, Maurizio Cattelan.) I must admit, I did plagiarize that concept for my son’s Pinewood Derby car entry earlier this year. Please note the trophy he won to his immediate right. After you have completed your Ren Waahs (I said

I didn’t go to art school), please return them to the Lake County Bar Association office by October 26, 2020. Once received, we will display all of your Mo Nays on the LCBA/LCBF website. Your Dolly’s will also be available for viewing at the LCBA/LCBF offices. QUERY: Why couldn’t all of these fancy pants painters spell their names right. We then plan on opening online bidding in early November with a minimum bid of $25.00 per masterpiece. I anticipate the bidding will close on November 20. Since this is online bidding, I would suggest that you engage out of town relatives or friends to participate. Once bidding is closed, we will announce the winners who will be able to pick up their treasures at the LCBA/LCBF offices.

All of the proceeds from the virtual art auction will be donated to charities. This year we have chosen three charities to support from the proceeds of the auction. They are Waukegan to College, the Nineteenth Judicial Circuit Court Self-Represented Litigant Program, and The Art Impact Project. Waukegan to College focuses on delivering award-winning college-readiness services to Waukegan students and their families. The Nineteenth Judicial Self-Represented Litigant Program offers information and public resources, with a special focus on people representing themselves in court in court proceedings. The program includes providing procedural information, legal assistance, filling out forms and instructions, and providing community

resources. The Art Impact Project is an organization designed to deliver art programming to help adolescents struggling with emotional wellness issues and substance abuse recovery. Please feel free to go to the websites of these wonderful organizations for more information. We are also offering sponsorship opportunities for $500.00 each. Sponsors will have their information posted on the viewing website. Please contact the Lake County Bar Association office at 847-244-3143 to purchase your canvas and sign up as a sponsor. We look forward to seeing your beautiful artwork. We hope you buy as many pieces as will fit on your walls.

COMBINED EXPERTISE. PROVEN EXPERIENCE. BETTER TOGETHER. Curtin Law, LLC and Whitcombe Law, PC are merging to offer enhanced expertise on the division of retirement accounts. The most comprehensive QDRO support in the same, convenient Libertyville location.

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September 2020

July 2020

Monthly Case Report

Editor’s Note: Monthly Case Report is provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman

Illinois Second Appellate Village of Campton Hills v. Comcast of Illinois V, Inc. Appellate Court of Illinois, Second District, November 18, 2019, --- N.E.3d ----, 2019 IL App (2d) 190055, 2019 WL 6112055 Background: Municipality filed suit against cable company to recover cable franchise fees. Cable company filed declaratory judgment against municipality and county to determine which government unit was entitled to fees. County filed counterclaim against cable company for recovery of unpaid fees and for indemnification. On cross-motions for summary judgment, the Circuit Court, Kane County, Mark A. Pheanis, J., determined municipality was entitled to fees, ordered county to reimburse cable company for fees it had paid to county, and denied county’s claim for indemnification. County appealed, and municipality cross-appealed. Holdings: The Appellate Court, McLaren, J., held that: 1 County lacked statutory authority to extend its franchise agreement with cablecompany with respect to property within village after village incorporated as a municipality, and 2 County’s reimbursement of cable company for franchise fees overpaid to county were not “damages” under indemnification provision of franchise ordinance. Affirmed; cross-appeal dismissed. ______________________________________________ Centeno v. Illinois Workers’ Compensation Commission Appellate Court of Illinois, Second District, WORKERS’ COMPENSATION COMMISSION DIVISION, March 30, 2020, --- N.E.3d ----, 2020 IL App (2d) 180815WC Background: Claimant and employer sought review of decision by Workers’ Compensation Commission, on claimant’s application for adjustment of claim, reducing arbitrator’s award of medical expenses but affirming award of temporary total disability (TTD) benefits. Trial court increased weekly TTD rate but otherwise affirmed. Claimant appealed. During pendency of appeal, claimant filed petition for immediate hearing, seeking TTD benefits and medical expenses incurred since date of original administrative hearing as well as

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yet-unpaid benefits awarded at original hearing. The Appellate Court, 2016 WL 3421320, affirmed trial court. After arbitrator denied claimant’s motion to withdraw petition and declined to award claimant relief, Commission affirmed arbitrator’s decision, finding that during period claimant allegedly did not work, he was actually employed under alias, and that claimant sought separate workers’ compensation benefits under that alias. Claimant sought judicial review, and the Circuit Court, Kane County, No. 18-MR-15, Kevin T. Busch, J., affirmed. Claimant appealed. Holdings: The Appellate Court, Hudson, J., held that: 1 Claimant was not entitled to withdrawal of his petition for immediate hearing after hearing commenced; 2 Commission could consider new evidence on review regarding claimant’s separate claim under alias; 3 Commission did not decide case on a basis not presented by the parties; 4 Commission lacked statutory authority to enforce award on petition for immediate hearing; 5 Claimant was entitled to award of attorney fees and penalties for employer’s failure to pay uncontested portions of award; and 6 sufficient evidence supported finding that claimant failed to establish causal connection between work-related injury and condition of ill-being after date of first arbitration hearing. Affirmed in part, reversed in part, and remanded with instructions. ______________________________________________

Illinois Second Appellate – Criminal People v. Bochenek Appellate Court of Illinois, Second District, February 19, 2020, --- N.E.3d ----, 2020 IL App (2d) 170545, 2020 WL 813131 Background: Defendant was convicted in the Circuit Court, DuPage County, John J. Kinsella, J., of identity theft not exceeding $300 following six-person jury trial. Defendant appealed. Holdings: The Appellate Court, Birkett, P.J., held that: 1 Venue provision for identity theft did not violate

state constitutional right to be tried in county in which offense was alleged to have been committed; 2 Defendant knowingly waived right to 12-person jury trial; and 3 Evidence that defendant used another person’s credit card to purchase cigarettes on a different occasion was admissible as other-crimes evidence. Affirmed. ______________________________________________

Holdings: The Appellate Court, Hudson, J., held that: 1 Defendant failed to establish that trial court erroneously believed that consecutive sentences were mandatory; 2 Record supported trial court’s finding that consecutive sentences were required to protect the public from further criminal conduct by defendant; and 3 Trial court properly established a basis for imposing consecutive prison terms. Affirmed.

People v. Moffett Appellate Court of Illinois, Second District, December 18, 2019, 2019 IL App (2d) 180964, 148 N.E.3d 736 Background: State originally charged defendant by complaint with one count of aggravated battery of officer, a correctional institution employee, and filed subsequent indictment with two counts including one alleging that defendant knowingly caused bodily harm to officer knowing that officer to be a correctional officer performing her official duties and the second alleging that defendant knowingly made physical contact of an insulting or provoking nature with officer knowing officer to be a correctional officer performing her official duties. Defendant filed a motion to dismiss the second count alleging a violation of her speedy trial rights. The Circuit Court, Kane County, John A. Barsanti, J., granted defendant’s motion to dismiss and motion in limine and denied State’s motion to reconsider. State appealed. Holdings: The Appellate Court, Birkett, P.J., held that: 1 Subsequent charge in indictment did not present a new and additional charge, and thus, the statutory speedy-trial period for charge related back to original complaint; 2 Appellate Court’s retroactive application of amendment to rule governing prior consistent statements of witnesses did not violate defendant’s right against the imposition of ex post facto laws; and 3 Officer’s statement to fellow officer that defendant had bitten her was admissible under excited utterance exception to hearsay rule. Reversed and remanded. ______________________________________________ People v. Hoffman Appellate Court of Illinois, Second District, March 17, 2020, 2020 IL App (2d) 180853, 148 N.E.3d 863 Background: After State’s confession of error and reduction of defendant’s sentence, defendant refiled motion to reconsider imposition of consecutive sentences for domestic battery and indirect criminal contempt. The Circuit Court, DuPage County, John J. Kinsella, J., denied the motion. Defendant appealed.

Fall Luncheons VIA ZOOM 12:00 – 1:00 pm September 22 Lake County Update October 20 Pro Bono Awards November 17 ARDC Update

September 2020

Obtaining Personal Jurisdiction in Multi-State Medical Negligence Claims

BY MICHAEL M. VIGLIONE

ealth systems now operate networks of hospitals and clinics that traverse state lines. This presents plaintiffs’ lawyers with a challenge: how can you get personal jurisdiction over an out-of-state specialist that directs treatment of an Illinois patient through a telephone consultation? This article explores pertinent case law and provides tips for obtaining jurisdiction.

Mr. Plaintiff subsequently dies in Illinois due to failure to timely treat the deep vein thrombosis. Mr. Plaintiff’s estate sues the health system, internal medicine physician, vascular surgeon, and the surgeon’s medical group in Illinois. The vascular surgeon and the medical group move to dismiss based upon lack of personal jurisdiction. They argue they do not reside in Illinois, do not conduct business in Illinois, and provided no treatment in Illinois, thus precluding jurisdiction.

THE FACT PATTERN Mr. Plaintiff goes to a walk-in clinic in Illinois complaining of severe left leg pain. A major health system owns and operates the clinic. An internal medicine physician orders a venous Michael Viglione is duplex doppler ultrasound that shows a a partner deep vein thrombosis. with the law The internal medicine physician firm of Ryan, conducts a telephone consultation Ryan & with a Wisconsin vascular surgeon that Viglione. His focus is on practices within the same health system. representThe vascular surgeon is employed by a ing injured Wisconsin-based medical group that victims of employs the health system’s Wisconwrongful sin doctors. While in Wisconsin, the death, medical malpractice, traffic accidents, vascular surgeon instructs the internal nursing home neglect, premises medicine physician to send Mr. Plaintiff liability, construction negligence, home with instructions to follow up and institutional negligence. with the vascular surgeon in a few days.

10 The Docket

THE LAW 735 ILCS 5/2-209 outlines when Illinois courts will exercise personal jurisdiction over non-resident defendants. The statute states: (a) Any person . . . [who] does any of the acts hereinafter enumerated, thereby submits such person . . . to the jurisdiction of the courts of this State as to

any cause of action arising from the doing of any of such acts: ... (2) The commission of a tortious act within this State[.]1 Section (c) states that: “A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.”2 Section (c) has been coined a “catch-all” provision.3 “If the contacts between a defendant and Illinois are sufficient to satisfy both federal and state due process concerns, the requirements of Illinois’ long arm statute have been met, and no other inquiry is necessary.”4 Under federal due process standards, a court may exercise personal jurisdiction over a non-resident defendant if the defendant has sufficient minimum contacts with the forum state such that maintenance of suit in the forum state does not offend traditional notions of fair play and substantial justice.5 Under Illinois due process standards, a court may exercise jurisdiction “when it is fair, just, and reasonable to require a non-resident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.”6 Plaintiffs bear the burden of making a prima facie showing that a court has personal jurisdiction.7 In determining whether plaintiffs have met their burden, a court is to construe any conflicts between the affidavits, pleadings, and depositions in plaintiffs’ favor.8 Once plaintiffs make this showing, “the burden then shifts to the defendant to demonstrate why the assertion of jurisdiction would be unreasonable.”9 The factors for determining whether assertion of jurisdiction is reasonable include: (1) the burden on the

defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive policies.10 A. The Defendant Committed a Tort in Illinois: Continuing with the previous hypothetical, Mr. Plaintiff’s attorney should argue the vascular surgeon’s negligent advice to send Mr. Plaintiff home constituted commission of a tort in Illinois. In Bell v. Don Prudhomme Racing, Inc., the plaintiff filed a retaliatory discharge case.11 The defendant’s agent was in Florida when he telephoned the plaintiff in Illinois and fired him.12 The Illinois Appellate Court held that “[r]egarding tort actions, the state in which the injury occurs is the state in which the tort occurs, and one who commits a tort in a state that is not its resident state should still be amenable to suit there.”13 The court further noted that “the Seventh Circuit has repeatedly held that tortfeasors must expect to be haled into Illinois courts for torts where the injury took place there.”14 The court found that because the plaintiff was fired in Illinois, his injury and the tort took place in Illinois.15 The court therefore found personal jurisdiction existed.16 In Kalata v. Healy, the defendant directed telephone calls and emails into Illinois regarding a joint venture agreement.17 The plaintiff alleged that the defendant subsequently misappropriated funds which the plaintiff invested in the joint venture.18 In denying the defendant’s motion to dismiss for lack of personal jurisdiction, the Illinois Appellate Court held that “the jurisdictional requirement is satisfied if the defendant performs an act or omission that causes injury in Illinois and the plaintiff alleges the act was tortious in nature.”19 The court found that the plaintiff’s injury occurred in Illinois from the defendant’s telephone calls and emails directed into Illinois.20 The court determined

How can you get personal jurisdiction over an out-of-state specialist that directs treatment of an Illinois patient through a telephone consultation?

1 2 3 4 5 6 7 8 9

735 ILCS 5/2-209(a). Id. at (c). See Kostal v. Pinkus Dermatopathology Lab, P.C., 357 Ill. App. 3d 381, 386 (1st Dist. 2005). Id. at 387. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990). See e.g., McNally v. Morrison, 408 Ill. App. 3d 248, 254 (1st Dist. 2011). See Bolger v. Nautical Int’l, Inc., 369 Ill. App. 3d 947, 950 (2d Dist. 2007). Bell v. Don Prudhomme Racing, Inc., 405 Ill. App. 3d 223, 228 (4th Dist. 2010).

10 11 12 13 14 15 16 17 18 19 20

See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985). See Bell, 405 Ill. App. 3d at 225. Id. at 232. Id. at 231. Id. Id. Id. at 232-233. See Kalata v. Healy, 312 Ill. App. 3d 761, 764 (1st Dist. 2000). Id. Id. at 766. Id.

September 2020

personal jurisdiction existed.21 Bell and Kalata support that the Wisconsin vascular surgeon (and his/her employer via respondent superior principles) committed a tort in Illinois. The vascular surgeon negligently directed that Mr. Plaintiff be sent home. Mr. Plaintiff subsequently died in Illinois due to this negligent direction. Because Illinois is where the injury occurred, it is also where the vascular surgeon’s tort occurred. Jurisdiction is therefore proper under 735 ILCS 5/2-209(a)(2). B. THE DEFENDANT’S CONDUCT FALLS WITHIN THE “CATCH-ALL” PROVISION. Mr. Plaintiff’s attorney should also argue that the vascular surgeon’s conduct gives rise to jurisdiction under 735 ILCS 5/2-209(c) (the “catch-all” provision). Illinois and federal precedent demonstrates that personal jurisdiction exists when a non-resident physician provides negligent medical advice that causes injury in the forum state. In Kostal v. Pinkus Dermatopathology Lab., P.C., the plaintiff saw an Illinois physician who obtained tissue samples.22 The Illinois physician sent the samples to a Michigan pathology laboratory.23 The defendants analyzed the samples in Michigan and sent reports to the Illinois physician.24 The reports were inaccurate and led to a treatment delay.25 The trial court determined personal jurisdiction existed over the Michigan physicians and the laboratory.26 The Illinois Appellate Court First District affirmed.27 The court noted that the defendants willingly received the tissue samples from Illinois and generated reports that were sent to the Illinois physician.28 The defendants knew the reports would be relied upon by the Illinois physician and inform the plaintiff’s treatment in Illinois.29 The court found this was tantamount to the defendants providing medical treatment in Illinois.30 The court held that personal jurisdiction existed under the state and federal Constitutions.31 The court distinguished cases cited by the defendants where a plaintiff traveled out-of-state to see a physician and then returned home and suffered the consequences of outof-state negligent conduct in Illinois.32 The court stated: The main difference is that the plaintiff here did not travel out of state, visit a doctor with a local practice, receive treatment and carry the consequences of treatment back to the forum. Here, instead, defendants purposefully directed their activities 21 22 23 24 25 26 27 28 29 30 31 32

Id. Kostal, 357 Ill. App. 3d at 383. Id. Id. Id. Id. Id. at 398. Id. Id. Id. at 397. Id. at 397-399. Id. at 393-394.

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here. The distinction between defendants’ activities and that of the local doctors in the cases cited by defendant is substantial.33 The Kostal court cited to a wealth of federal precedent holding personal jurisdiction exists when a non-resident physician provides negligent advice to a patient in the forum state and the patient suffers harm in the forum state.34 It is appropriate for an Illinois court to consider such precedent because part of the jurisdictional analysis under 735 ILCS 5/2-209(c) involves determining whether exercising jurisdiction complies with federal due process concerns.35 In Kennedy v. Freeman, the Tenth Circuit Court of Appeals found that personal jurisdiction existed when a non-resident physician accepted a tissue sample, wrote a report about the sample, and sent the report to the forum state.36 Due to the report’s inaccuracy the plaintiff was not treated and malignant melanoma spread.37 The court found that the physician purposefully directing his actions into the forum state created personal jurisdiction.38 In McGee v. Riekhof, a Montana Federal District Court held that personal jurisdiction existed when a non-resident physician advised the plaintiff’s wife via telephone that the plaintiff could return to work.39 The plaintiff suffered a retinal detachment at work and alleged the advice was negligent.40 The court found that the physician provided advice in the forum state from which the plaintiff’s cause of action arose, thus creating personal jurisdiction.41 In Walsh v. Chez, a Pennsylvania Federal District Court found that personal jurisdiction existed when a non-resident physician monitored the decedent’s status and ordered blood tests via telephone.42 The court stated that “[c] ourts have generally held that jurisdiction is proper where, as here, a doctor provides medical advice or diagnosis via telephone while the patient is in [the forum] state[.]”43 The court determined that the non-resident physician providing medical advice to an in-state plaintiff created personal jurisdiction.44 In Gonzalez v. Chandel, a Kansas Federal District Court found that personal jurisdiction existed when a non-resident physician called the plaintiff’s treating physician in the forum state and advised what treatment the plaintiff should receive.45 The court held that this constituted the non-res33 Id. at 393. 34 Id. at 390-398. This article discusses cases cited by Kostal as well as additional precedent the opinion does not explicitly address. 35 735 ILCS 5/2-209(c). 36 Kennedy v. Freeman, 919 F.2d 126, 127 (10th Cir. 1990). 37 Id. 38 Id. at 129-130. 39 McGee v. Riekhof, 442 F. Supp. 1276, 1277 (Mont. 1978). 40 Id. 41 Id. at 1279. 42 Walsh v. Chez, 418 F. Supp. 2d 781, 783-784 (West. Dist. Penn. 2006). 43 Id. at 787. 44 Id. at 789. 45 Gonzalez v. Chandel, 13 F. Supp. 2d 1197, 1199 (Kansas 1998).

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ident physician purposefully availing himself of the laws of the forum state and created personal jurisdiction.46 Mr. Plaintiff’s attorney should use this precedent to argue that the vascular surgeon purposefully availed him/ herself of Illinois law when the surgeon directed treatment advice into Illinois. It was foreseeable that Mr. Plaintiff would rely on this advice and that if harm resulted the surgeon could be haled into an Illinois court. This presents a strong basis for establishing jurisdiction under 735 ILCS 5/2-209(c). C. Distinguish Contrary Precedent: Mr. Plaintiff’s attorney should anticipate precedent that the vascular surgeon and the medical group will cite. One such decision will likely be Unterreiner v. Pernikoff. In Unterreiner, the plaintiff traveled from Illinois to Missouri for heart surgery.47 The defendant heart surgeon did not advertise in Illinois, rather the plaintiff unilaterally sought him out in Missouri.48 The plaintiff attended follow-up appointments in Missouri.49 A follow-up test showed the plaintiff’s anticoagulant levels were low.50 The defendant’s office left the plaintiff a voicemail message on an Illinois telephone number.51 The plaintiff returned the phone call from Illinois and spoke to someone with the defendant’s office.52 The plaintiff was told to take Warfarin and return to the defendant’s office in Missouri in a month.53 The plaintiff suffered a stroke.54 The plaintiff alleged that the defendant was negligent in not having her follow-up sooner.55 The trial court denied the defendant’s motion to dismiss based upon lack of personal jurisdiction.56 The Illinois Appellate Court Fifth District reversed.57 The court found that personal jurisdiction did not exist.58 The court noted the plaintiff unilaterally sought out the defendant by traveling to Missouri for treatment.59 The court stated that “[a] plaintiff may not lure a nonresident [sic] defendant into a jurisdiction, and the mere unilateral action of the plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the jurisdictional requirement of minimum contacts.”60 The court held that the physician’s office leaving a voicemail message for the plaintiff on an Illinois phone number was “too attenuated and fortuitous to support jurisdiction.”61 The court found the plaintiff could have returned the mes46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61

Id. Unterreiner, 2011 IL App (5th) 110006, at ¶ 3. Id. Id. Id. Id. Id. Id. Id. Id. Id. at ¶ 1. Id. at ¶¶ 15-16. Id. Id. at ¶ 9. Id. at ¶ 5. Id. at ¶ 9.

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sage from any number of jurisdictions.62 The court determined it was not foreseeable to the defendant physician that he could be called into an Illinois court to defend himself based upon his office leaving a voicemail on an Illinois phone number.63 The court therefore dismissed for lack of personal jurisdiction.64 The key distinction between the hypothetical explored herein and Uterreiner is that Mr. Plaintiff did not “unilaterally seek out” the Wisconsin vascular surgeon. The vascular surgeon was “sought out” by an Illinois internal medicine physician practicing within the same health system as the surgeon. The surgeon consulted with the internal medicine physician and gave negligent treatment advice, the consequences of which were experienced by Mr. Plaintiff in Illinois. Distinctly, in Uterreiner, the plaintiff unilaterally sought out the defendant physician and traveled to Missouri to receive treatment.65 The court found that because the Plaintiff could have returned to any state after receiving that treatment, it would not allow the plaintiff’s choosing to return to Illinois to subject the physician to Illinois’ jurisdiction.66 As previously stated, the Kostal court recognized this distinction. The Kostal court noted that the jurisdictional analysis differs when a plaintiff’s care is directed to an outof-state physician who chooses to participate in a treatment/ referral network, versus when a plaintiff unilaterally seeks out-of-state treatment and later experiences the consequences of that treatment in Illinois.67 The Kostal court repeatedly stressed this distinction: Thus, it was long ago recognized that even the bellwether case of Wright v. Yackley established a distinction between a situation where one ventures into a foreign state, receives medical treatment, returns to his home state and suffers injurious consequences, and a case where the nonresident physician diagnoses and treats a patient by mail.68 ... We reject defendants’ attempt to characterize their diagnosis and provision of medical services and treatment via mail to an Illinois resident as identical to . . . unilateral activity on the part of the plaintiff seeking medical treatment.69 The overriding point of Kostal is that when out-ofstate physicians participate in a treatment/referral network wherein they provide advice that is acted upon by Illinois 62 63 64 65 66 67 68 69

Id. Id. Id. at ¶¶ 15-16. Id. at ¶ 3. Id. at ¶¶ 5-9. Kostal, 357 Ill. App. 3d at 393-395. Id. at 395. Id. at 394.

residents in Illinois, they submit to Illinois’ jurisdiction. This is distinct from when a physician solely practices outof-state, an Illinois resident unilaterally chooses to cross state lines to receive care, and the resident later suffers harm from that care in Illinois. Establishing that Mr. Plaintiff’s case is factually analogous to Kostal and distinct from Uterreiner is key in defeating a motion to dismiss based upon lack of jurisdiction. The following are some useful tips to do so. PRACTICE TIPS The first thing that Mr. Plaintiff’s counsel should do is obtain all the medical providers’ employment contracts in discovery. Health systems often require physicians to refer patients to providers practicing within the health system. They also require specialists to accept and treat these patients. Proving that the Illinois internal medicine physician was contractually required to consult with the Wisconsin vascular surgeon concerning Mr. Plaintiff, and the vascular surgeon was contractually required to accept the consult, shows that the consult was part of a treatment/referral network that the health system created and the vascular surgeon chose to participate in. This shows that the plaintiff did not unilaterally seek out-of-state treatment from the vascular surgeon, but instead was deliberately directed to a surgeon that contracted to treat him. The second thing Mr. Plaintiff’s counsel should do is obtain the health system’s advertising materials. The health system’s website may advertise that it operates a wide network of facilities in multiple states. The vascular surgeon’s page on this website may say he/she treats Illinois patients. This evidence buttresses the argument that it was the network of multi-state facilities created by the health system that led to Mr. Plaintiff being treated by the Wisconsin vascular surgeon, rather than any unilateral choice Mr. Plaintiff made. The third thing Mr. Plaintiff’s counsel should do is explore the corporate relationship between the parent health system, its subsidiary Wisconsin medical group, and the Wisconsin vascular surgeon. This can be accomplished by taking the depositions of the corporate representatives most knowledgeable concerning this relationship.70 Counsel should also obtain the corporations’ articles of incorporation, bylaws, and policies and procedures. These materials will elucidate whether the medical group is wholly owned or controlled by the parent health system. If this is the case, then Mr. Plaintiff’s attorney can add a principal/agency theory to the Complaint and argue that the health system doing business in Illinois should subject its agent (the medical group) to general jurisdiction in Illinois. The fourth thing Mr. Plaintiff’s counsel should do is explore the relationship between the health system, internal medicine physician, medical group, and vascular surgeon in

party depositions. Ask the internal medicine doctor if the doctor is required to and routinely does refer health system patients to the surgeon. Ask the surgeon if the surgeon is required to and routinely does treat Illinois patients of the health system. Ask the surgeon if the surgeon can refuse a referral of an Illinois patient of the health system. The answers to these questions strengthen the argument that it was foreseeable to the surgeon that an Illinois patient would be referred for consultation and treatment. This, in turn, renders it foreseeable that the surgeon could be called into an Illinois court for negligent treatment advice. Mr. Plaintiff’s counsel should always keep in mind why the health system contractually requires its Illinois physicians to refer patients to out-of-state specialists within the health system. This is done for the purpose of keeping the patient within the health system, and ultimately, allowing the system to bill for the patient’s medical care. Mr. Plaintiff’s attorney should stress to the judge that the health system has created a multi-state, for-profit referral network. When a health system does this, and when Wisconsin providers deliberately treat Illinois resident patients within this network, it is readily foreseeable that these providers will be called to defend themselves in Illinois. This is not akin to a patient unilaterally seeking out-of-state care. It is the patient intentionally being directed to an outof-state provider for profit. CONCLUSION The advent of major health systems operating facilities across multiple states creates unique jurisdictional situations. Understanding the relevant precedent from case intake forward will help Plaintiff’s counsel conduct the necessary discovery to establish personal jurisdiction. This is extremely important as one does not want to litigate a medical negligence case piecemeal in two states and over the course of two trials.

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70 See IL. S. Ct. R. 206(a)(1).

September 2020

Better go check your Krautsack!

Fee Shifting under the Consumer Fraud Act

BY KEVIN MCCORMICK

he Illinois Consumer Fraud and Deceptive Practices Act1 (“Consumer Fraud Act”) has a long and meandering history in Illinois courts since its inception. There are currently more than 75 distinct types of fraudulent acts enumerated directly within the Consumer Fraud Act that are illegal in Illinois, along with dozens of other statutory violations from companion statutes which provide that a violation of those statutes is also a violation of the Consumer Fraud Act.2

At its core, the Consumer Fraud Act was enacted to create broad protective coverage for everyday consumers from many types of deceptive or unfair selling techniques used by businesses. While the Consumer Fraud Act may not have been Kevin K. intended to protect consumers from McCormick, the consequences of bad bargaining, of DeWald it was intended to protect consumers Law Group, from unscrupulous merchants. PC, con Over the years, the scope and centrates his general breadth of claims brought under the practice on Consumer Fraud Act has expanded to commercial nearly all reaches of the business world and civil 12

1 2

815 ILCS 505/1, et seq. See, e.g., Uniform Deceptive Trade Practices Act, 815 ILCS 510/et seq.; Electronic Mail Act, 815 ILCS 511/et seq.; Home Repair and Remodeling Act, 815 ILCS 513/ et seq.

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and oftentimes well beyond what the initial drafters of the Consumer Fraud Act ever intended. Both the number of claims seeking relief under the Consumer Fraud Act and the number of Consumer Fraud Act cases brought with companion claims, most often breach of contract and fraud claims, have increased dramatically in recent years. Sometimes these companion claims arise under the predicate Consumer Fraud Act claim, but sometimes the inverse is true. As is occasionally the case in those inverse occurrences, the Consumer Fraud Act claim is brought simply litigation, because of the fee shifting provision corporate and busifound in the Consumer Fraud Act, ness law, intellectual property, and since the underlying breach of consundry civil matters throughout tract or fraud claim does not allow for Cook and the collar counties the recovery of attorneys’ fees. Section

10a(c) of the Consumer Fraud Act specifically provides that “in any action brought by a person under this Section, the Court…may award…reasonable attorney’s fees and costs to the prevailing party.”3 Because the Consumer Fraud Act’s purpose is to protect consumers against fraud, and because individual consumer fraud claims are frequently small, the fee shifting provision ensures that defrauded consumers will be able to exercise their rights under the statute.4 But what happens in the event the Consumer Fraud Act claim is dismissed, either at the pleading stage, summary judgment, or even at trial? For example, every now and then, a Consumer Fraud Act claim brought with an underlying breach of contract claim is dismissed because the Consumer Fraud Act claim is merely redundant to the breach of contract claim. Illinois law, along with most other states that have a similar consumer fraud statute, require that the deceptive act or practice that forms the basis of a Consumer Fraud Act claim must involve more than the mere fact that a defendant promised something and then failed to do it, because that type of “misrepresentation” occurs every time a defendant breaches a contract.5 Dismissal of these faulty claims results in a prevailing defendant. Can the prevailing defendant recover fees under the Consumer Fraud Act? The Consumer Fraud Act fee shifting provision is quite clear: “the Court…may award…reasonable attorney’s fees and costs to the prevailing party.” With such clear language, it would be an honest assumption that seeking fees as a prevailing defendant would be fairly straightforward. History has borne out a different result. Illinois courts have had to resolve myriad issues regarding fee shifting under the Consumer Fraud Act, including, among other issues, (1) whether a prevailing party under the Consumer Fraud Act claim can seek statutory attorney’s fees after summary judgment on the Consumer Fraud Act claim alone even while other claims remain pending;6 (2) whether the prevailing party

under the Consumer Fraud Act claim itself is entitled to an award of attorney’s fees, irrespective of the success or failure of that party in other claims brought in the same lawsuit;7 and, (3) whether a losing party on the Consumer Fraud Act claim is not entitled to attorney’s fees even if that party was successful on all other claims in the action.8 Hint: the answer to all three is a resounding yes. But what about that prevailing defendant? Again, the fee shifting language unequivocally says the prevailing party may9 be awarded fees, but, as can be found throughout Illinois law, being unequivocal is often not enough. The closest our supreme court has come to answering that question was in the case of Krautsack v. Anderson where it was unequivocally confirmed that “[t]he term ‘prevailing party’ under the [Consumer Fraud Act] encompasses a prevailing defendant, as well as a prevailing plaintiff.”10 How the prevailing defendant actually prevails on its requests for fees under the Consumer Fraud Act remains partly a mystery. Let’s dive deeper into Krautsack to understand how that is so. For years, there was a significant circuit split with regard to prevailing defendant fees under the Consumer Fraud Act. The Krautsack court clarified the standard applicable when a defendant requests attorney fees under the Act. The Krautsack court explained that, “where a prevailing defendant petitions the trial court for a reasonable attorney fee under [the Consumer Fraud Act], only if the trial court makes a threshold finding that the plaintiff acted in bad faith should the trial court consider other circumstances relevant to its exercise of discretion.”11 What Krautsack failed to do, however, was provide the definition of bad faith. Prior to Krautsack, several courts, including the lower court in Krautsack,12 held that Illinois

With such clear language, it would be an honest assumption that seeking fees as a prevailing defendant would be fairly straightforward. History has borne out a different result.

3 4 5

815 ILCS 505/10a(c). Boeckenhauer v. Joe Rizza Lincoln Mercury, 866 N.E.2d 678, 682 (2d Dist. 2007) American Airlines, Inc. v. Wolens, 513 U.S. 219, 233 (1995); Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100 (2005); Zankle v. Queen Anne Landscaping, 311 Ill.App.3d 308, 312 (2d Dist. 2000). Tolve v. Ogden Chrysler Plymouth, Inc., 324 Ill.App.3d 485 (2d

Dist. 2001). Boeckenhauer v. Joe Rizza Lincoln Mercury, 361 Ill.App.3d 470 (2d Dist. 2005) (abrogated on other grounds by Krautsack v. Anderson, 223 Ill. 2d 541 (2006)). 8 Overton v. Kingsbrooke Development, Inc., 338 Ill. App.3d 321 (5th Dist. 2003). 9 As with any other permissive statute, the Consumer Fraud Act’s “may” ultimately leaves the award of fees to the discretion of the court. 10 223 Ill. 2d 541, 554 (2006). 11 Id. at 559. 12 329 Ill.App.3d 666 (1st Dist. 2002).

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Supreme Court Rule 137 provides the proper standard for judging a party’s bad faith when considering the propriety of fees under section 10a(c) of the Consumer Fraud Act. The Krautsack court noted that in Door Systems, Inc. v. Pro-Line Door Systems, Inc.,13 the court of appeals recognized that a fee award under the Consumer Fraud Act is not automatic and then sought to clarify the appropriate standard for fee awards, stating in relevant part: We think it reasonably plain that bad faith is too narrow a standard. Even if a suit is brought in good faith, it could be so lacking in merit or so burdensome to defend against as to be oppressive, in which event the defendant would have a powerful equitable claim to recover a reasonable attorneys’ fee.14 The court of appeals explained that an oppressive suit “was something that might be described not just as a losing suit but as a suit that had elements of an abuse of pro-

13 126 F.3d 1028 (7th Cir.1997). 14 Id. at 1030.

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cess, whether or not it had all the elements of the tort.”15 While the Krautsack court agreed that the bad faith standard under Rule 137 was too narrow, it did not adopt the “oppression” standard offered by Door Systems. More importantly, it also did not articulate its own standard. Rather, it simply described the relationship between the concept of bad faith under Supreme Court Rule 137 and the Consumer Fraud Act. The Krautsack court explained: Because Rule 137 addresses the pleadings, motions and other papers a litigant files, the rule does not provide a sanction against all asserted instances of bad-faith conduct by a litigant or the litigant’s attorney during the course of litigation. For example, a party’s pleadings may conform to Rule 137, yet the party may be guilty of other rule violations amounting to bad faith. We discern no reason why a prevailing defendant should be limited by Rule 137 in establishing a plaintiff’s bad faith. Rule 137, and the body of case law that has developed around it, provide useful guidance to litigants and judges, but a defendant’s failure to demonstrate bad faith by the plaintiff under Rule 137 is not fatal to a prevailing defendant’s fee petition under the [Consumer Fraud] Act.16 Muddying the waters further, Krautsack then identified a “nonexhaustive” list of five factors that the circuit court “may consider when ruling on a fee petition,” but only after the circuit court makes its threshold finding that the plaintiff’s claim was brought in bad faith.17 The factors are: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing party would deter others from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all consumers or businesses or to resolve a significant legal question regarding the Act; and (5) the relative merits of the parties’ positions.18 Krautsack then upped the ante further by suggesting that the best and only way to resolve these factors is through an evidentiary hearing. So where does the prevailing defendant then go to recover fees? We know for certain that the prevailing defendant in a Consumer Fraud Act claim may recover fees, and we further know that the prevailing defendant may recover fees without having to prove a violation of Rule 137. From there, however, identifying and proving what amounts to bad faith remains a mystery. Prevailing defendants should not be dissuaded from seeking fees if there is a good faith belief that the plaintiff brought its Consumer Fraud Act claim in bad faith, but without question, prevailing defendants better go check their Krautsack before seeking those fees.

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15 16 17 18

Id. at 1031. 223 Ill. 2d at 562 (internal citations omitted). Id. at 554. Id. (quoting Graunke v. Elmhurst Chrysler Plymouth Volvo, Inc., 247 Ill.App.3d 1015, 1020 (2d Dist. 1993)(abrogated on other grounds).

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Docket Interview with Charlene Quint

he Docket recently interviewed LCBA member Charlene Quint to talk about her new book. Quint is a family law attorney and author of “Overcoming the Narcissist, Sociopath, Psychopath, and Other Domestic Abusers: The Comprehensive Handbook to Recognize, Remove, and Recover from Abuse.”

to discredit the victim. The churches and synagogues far too Docket: What prompted you to write this book? It’s often support the abuser, claim they are extending “grace” 576 pages – that’s not just an afterthought. and forgiveness, or don’t want to get involved – which by CQ: Domestic abuse is the most misunderstood yet default supports the abuser. Dietrich Bonhoeffer, a pastor silenced and covered- up pandemic of our time. It occurs who stood against the Nazis when most of the German regardless of socio-economic, educachurch was silent, appropriately said, tional, religious or racial background. “Silence in the face of evil is evil itself. Charlene An astounding 35 percent of women will ... Not to speak is to speak. Not to act Quint is a family experience stalking, rape, or severe physis to act.” Most people and institutions attorney at ical abuse in their lifetime, and nearly don’t come right out and say “I support Charlene half will experience coercive control or domestic abuse. I support evil.” They D. Quint, emotional or verbal abuse. To put it in are much more subtle. The victims are Counselor perspective, these percentages are highre-victimized by every part of our comat Law, LLC and er than the percentage of all the people munities which should support them, focuses her who will get all forms of cancer comyet instead, often support the abuser. practice on bined. Yet, few people are addressing it. representing The family and criminal courts are full of Docket: What is different about victims of abusers – and, of course, their victims. this book? domestic abuse. She serves as CoChair of the Partnership for a Safer The police all too often don’t support the CQ: There are a number of books Lake County and founded a number victim and ignore orders of protection. on domestic abuse, but none of them of support groups for domestic The friends and family of the abuser algive the victim of abuse all the inforviolence survivors. most always support the abuser and try mation she needs in one place. This

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book is comprehensive – a textbook really. The book is divided into three sections, each of which addresses what I call the “3 Rs” of domestic abuse: how to recognize it, how to remove oneself from it, and how to recover from it. Everything a victim needs to know is covered. It is multi-disciplinary. It offers information from counseling, legal, financial, scientific, and spiritual perspectives. It combines empirical research, personal experience, professional expertise, and individual true stories of survivors who have broken free from abuse and thrived. Unlike many books, it gives detailed, practical steps to take to break free, heal, and get on with her life.

CQ: The primary audience is women escaping domestic abuse. It is designed to give her all the information she needs to identify abuse, get out safely, heal, and become the woman she is designed to be. Ninety percent of abusers are men, and about 85 percent of victims are women, so I wanted to address the biggest need. It is particularly meaningful to women of faith, who feel guilty for divorcing an abuser, feel that God is mad at them if they divorce, and stay in abusive marriages significantly longer than other women. It delves deep into the Judeo-Christian scriptures and discusses what the Bible really says about divorce from an abuser and how we need to protect ourselves from people who abuse and hold them accountable, not make excuses for them. As attorneys, many of our clients are people of faith, and we need to understand their concerns and help them see that what is holding them in their abusive marriage is not condoned by their faith tradition.

Silence in the face of evil is evil itself. ... Not to speak is to speak. Not to act is to act.

Docket: Is there a connection between mental illness and abuse? CQ: Research shows that the vast majority of abusers have Narcissistic Personality Disorder or Antisocial Personality Disorder, from which we get the terms sociopaths and psychopaths. One study indicated that 80-90 percent of abusers in the family court system had these pathological disorders, and as the abuse escalates, the numbers near 100percent. These are permanent, incurable, non-treatable, dangerous personality disorders. Yet, we cannot simply excuse their behavior because of their personality disorder. Abuse is always a choice – we know this because they choose to be on good behavior when it serves their purpose. And many, if not most, are very high- functioning and successful. In fact, lawyers, doctors, C-Suite professionals, police, media personalities, politicians and clergy are some of the professions with the most sociopaths. Docket: What about counseling? CQ: Overwhelmingly, mental health professionals advise against marital counseling with an abuser. Abusers use the counseling sessions to manipulate the counselor and show why their spouse is the problem, rather than taking responsibility for the damage they have done. Marital counseling is only effective for two people who are relatively emotionally healthy, have the best interests of their spouse in mind, and hold goodwill towards each other. Someone must want to change and make a relationship work in order for counseling to be effective. Empirical studies show that the treatment of people with Narcissistic Personality Disorder and Antisocial Personality Disorder lack statistical significance. Most perpetrator programs are ineffective with high recidivism rates. What is needed is individual counseling for the victim – so that she can heal and get stronger. Docket: Who is the target audience for the book?

Docket: Are there other audiences? CQ: Another audience is clergy and congregational leaders. They are often the first person a woman goes to when she is in an abusive situation, but they usually have no training in domestic abuse in seminaries. They often give bad advicethat puts a woman and her children in danger and that is not even biblical. This is the result of lazy theology and it’s dangerous. The book provides a list of 13 biblical best practices that support a victim and hold an abuser accountable, and it also provides a list of 13 most common mistakes to avoid. In addition, as I mentioned, it delves deep in the Judeo-Christian scriptures and modern positions of various denominations, and discusses what the Bible really has to say about divorce from an abuser. It provides a curriculum for faith-based support groups. I did not go to seminary, so I wanted to make sure the book was theologically correct. I asked five pastors from various denominations, including two seminary professors, to review it for biblical accuracy. A third audience is family lawyers, Guardians Ad Litem and judges. Research shows that the number one reason why people get divorced is emotional, verbal and physical abuse. The survivors are our clients. Sadly, the abusers are also clients of many attorneys. The book describes the actions and characteristics of abusers in great detail, so we as lawyers know what to expect from them. For example, primary characteristics of abusers include lying, lack of conscience, lack of empathy, lack of remorse, and using others for their own selfish purposes. Once litigation begins, parental alienation, a smear and slander campaign against the leaving spouse, playing the victim, vindictive-

September 2020

ness, using the court system to inflict additional financial and emotional abuse, lying about finances, and refusing to honor marital settlement and parenting agreements are givens. We can absolutely expect this kind of behavior during the litigation process, and it is incredibly damaging to the spouse and children. The legal system needs to hold them accountable. The book also describes the effect of abuse on the victims, including Post Traumatic Stress Disorder in nearly every case, as well as parental and social alienation. It helps us as attorneys be more compassionate. A fourth audience is counselors, therapists, and domestic violence organizations. When I became a Certified Domestic Violence Professional and started support groups in Lake Forest and Gurnee with A Safe Place, we had no curriculum. Further, we had nothing to offer women of faith who needed spiritual support which they were not receiving from their faith community. This book provides a curriculum for these communities as it informs their clients of the tactics of abuse and the characteristics of abusers, walks them through the arduous process of leaving, and guides them in the path of healing and creating the abundant life she was designed to lead. I am not a licensed counselor, so I asked therapists, counselors, and domestic abuse agencies to review it for accuracy. Docket: Have you received any endorsements so far? CQ: I am delighted to have received endorsements from Mike Nerheim, Lake County State’s Attorney; Mi-

chael Strauss, partner at Schlesinger & Strauss,Vice President of the Board of A Safe Place, and Illinois State Bar Association Family Law Chair; Pat Davenport, executive director of A Safe Place- ; Joyce Mason, state representative of the 61st District; Charles Dahn, Director of the Domestic Violence Outreach of the Chicago Archdiocese; numerous family therapists- ; several pastors- ; two seminary professors;-, , the founder of the national domestic abuse organization DomesticShelters.org- and dozens of survivors. Docket: Where can I get a copy? CQ: The release date is October 1, in honor of Domestic Violence Awareness Month. It is being sold on Amazon and available at bookstores (although, sadly, there are few bookstores left). Until October 1, it is available for pre-sale orders. Docket: What do you hope this book will accomplish? CQ: First, I hope it changes lives for the survivors of domestic abuse. I hope it answers questions, helps them get out safely, and leads them onto a path of healing and wholeness. Second, I hope it opens the eyes of faith communities to domestic abuse. I hope it educates and equips clergy and congregational leadership to act in ways that support survivors and hold abusers accountable. I also hope it helps therapists and domestic abuse organizations as they strive to support survivors and help them heal. Finally, I hope it changes the way that lawyers practice law.

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Pictured above (from the left): Karina A. Elperin (Wealth Management Associate), David J. Gordon (Senior Portfolio Management Director, Executive Director, Financial Advisor), Rafal Fidowicz (Registered Associate)

22 The Docket

The use of the CDFA designation does not permit the rendering of legal advice by Morgan Stanley or its Financial Advisors which may only be done by a licensed attorney. The CDFA designation is not intended to imply that either Morgan Stanley or its Financial Advisors are acting as experts in this field. Certified Financial Planner Board of Standards Inc. owns the certification marks CFP®, CERTIFIED FINANCIAL PLANNER™ and federally registered CFP (with flame design) in the US. Morgan Stanley Smith Barney LLC. Member SIPC. CRC 2778512 11/19

Moderated by Chicago Daily Law Bulletin Editor, Marc Karlinsky

State's Attorney Candidates: Michael Nerheim & Eric Rinehart

LAKE COUNTY CANDIDATES FORUM Clerk of the Circuit Court Candidates:

Erin Cartwright Weinstein & Gloria Schmidt Rodriguez

September 29, 2020 12PM-1:30PM

September 2020

Board of Directors’ Meeting June 18, 2020 ACTION ITEMS: 1. Consent Agenda: a. May Minutes – P3 b. May New Members – P5. Motion to approve Consent Agenda,Motion Seconded, Motion Passed. 2. Treasurer’s report: a. June – May 2020 Financial Report with Year-End Projections – P6. Treasurer updated the Board on the Financial Report and discussion had about 2020-21 budget. OLD BUSINESS: 1. Real Life Program Update: Program update and discussion. The program is ready to launch on a date TBD. Motion made to approve program cost, Motion Seconded, Motion Passed. 2. PPP Loan Update: Treasurer updated Board on Loan distribution. 3. Joint Polling with ISBA – Review and consider new information – P11 Discussed Joint Judicial Polling with the ISBA, Motion Made to Participate in Joint Polling with the ISBA for circuit Judge Elections and Circuit Court Judicial Retention Elections, Motion Seconded, Motion does not pass.

24 The Docket

NEW BUSINESS: 1. Internal Control System Document: Review proposed Internal Control System document and approve as is or revise as needed – P15. Motion to approve Internal Control System Document, Motion Seconded, Motion Passed. 2. Fall Luncheons: (Sept. 22 – Lake Co. Update / Oct. 20 – Pro Bono Awards / Nov. 17 – ARDC Update). Discussion regarding whether luncheons will be in person or via zoom on going. 3. Candidate Forum: Discuss possibility of conducting a Candidate Forum in September. First Vice President Updated Board on the Possibility of a Candidate Forum in the fall, Date of Forum TBD. 4. Bad Debt Write-Off Policy: Review, discuss and approve proposed Bad Debt Write-Off Policy - P40 Motion to approve Bad Debt Write-Off Policy, Motion Seconded, Motion Passed. Motion to to write off current Bad Debt, Motion Seconded, Motion Passed. 5. Joint sub committee LCBA/LCBF: Rice Founda-

The

Meeting Minutes BY KATHERINE S. HATCH SECRETARY

tion property tax exemption update. Stephen Rice updates bard on property tax exemption paperwork and signatuers. 6. PR/Social Media Committee: Discussion regarding adding this new committee. Formation of New PR/Social Media Committee discussed. 7. COVID19: Lake County Bar Association will continue to provide access to all ongoing 19th Judicial Cicuit Covid-19 information. 8. ZOOM: Lake County Bar Association will provide ongoing Zoom training for attorneys. 9. Integrated Case Management System OTHER MATTERS: 1. Future Executive and Board Dates – P42 2. Committee Chair Appointments and Board Assignements Orientation – P43 3. Board and Committee

Chair Orientations Motion to adjourn: Motion to Adjurn, Motion Seconded, Motion passed at 1:04. Next Board Meeting: July 23, 2020 BOARD MEMBERS PRESENT Hon. Patricia Cornell President Joseph Fusz First Vice President Tara Devine Second Vice President Kathleen Curtin Treasurer Katherine S. Hatch Secretary Stephen Rice Past President David R. Del Re 2018-2021 Director Thomas A. Pasquesi 2018-2021 Director Dwayne Douglas 2019-2022 Director Daniel Hodgkinson 2019-2022 Director Craig Mandell 2020-2023 Director Dale A. Perrin Executive Director

LAWYER REFERRAL SERVICE

WHY SHOULD YOU JOIN? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help. The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer. Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

ATTORNEYS NEEDED IN THE FOLLOWING CATEGORIES • Administrative • Bankruptcy • Commercial • Consumer • Employment • Environmental • Estate Planning, Wills, Trusts and Probate Visit lakecountylawyer.info for a complete list of available categories.

CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

LAKECOUNTYLAWYER.INFO

September 2020 25

hwaenltepd! I

need to focus this month’s article on a plea for participation and involvement for two different issues. First is a plea for more members to consider participating in our Lawyer Referral Service (LRS) program. I realize every dollar counts right now and we’re all watching our expenses and budgets very closely this year. However, in the grand scheme of things $200 or $350 annually is a pretty small sum to pay. One client from the referral would cover the cost. I bring this up and plead for more participants because our call volume at the LCBA office has increased dramatically these

26 The Docket

past couple of months, particularly in the areas of Employment Law, Landlord/Tenant (especially the tenant side), Immigration, and Small Claims issues. Currently there are only a couple of attorneys listed in most of these areas, only one in Employment Law, who are receiving all of the referrals we have. In the past several weeks, I’ve given out the name and phone number for the one attorney listed under Employment Law 8 - 12 times a week. Hopefully he’s turning 2-3 of them a week into clients. Find out more about the program and download an application on the LCBA website under the “Mem-

In the

Director’s Chair

bership” dropdown tab. My second plea is for participation in the Foundation’s Art With a Heart fundraiser. This online art auction is replacing the Foundation’s biennial Gala which would have occurred this November but was canceled due to COVID. This fun and unique art auction requires audience participation (you being the audience). We want to see the many hidden talents of our members. The Gridiron has already shown that we have many talented and artistic members. This event is for those who are just as talented but perhaps too shy to get in front of an audience. We have blank 8” x 8” canvases for sale for $10 each. We encourage you to purchase one or more, create some sort of masterpiece on them, and return them to the LCBA/LCBF office by October 26 where they will be photographed and displayed on a special

BY DALE PERRIN EXECUTIVE DIRECTOR Art With a Heart website. The online auction of these pieces of art begins November 2 and will end the 20th (the date that the Gala would have been held). Since this event is virtual, there is no limit to who can participate. We want to see your hidden talent as well as the creative talent of your children, your spouse, parent, sibling, neighbor, high school art teacher, and if you so happen to be connected, local known artists in your community. Artwork is not limited to acrylic paintings. Be creative and show us what you can do with clay, or photography. As long as it is not bigger than, and you can attach it to the 8” x 8” canvas, we want it. Since bidding on the art will be virtual, it is open to anyone, anywhere, including Abuela in Arizona. continued on page 28

September 2020 27

continued from page 26

So spread the word. Three primary benefactors have been identified for this fundraiser. They include Waukegan to College with a focus on helping prepare first generation students get accepted to and excel in college. The 19th Judicial Circuit Self-Represented Litigant Program helping to provide meaningful access to the (virtual) judicial system for individuals unable to afford an attorney. And the Art Impact Project based in Lake County which works to enhance emotional wellness through creative expression particularly for those with mental and behavioral health concerns including children and adults. Contact the LCBA/LCBF office today to buy your canvas and let’s have some fun with this.

Bar

Bulletin Board

Monthly

Committee Meetings

DAY

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

LCBA

12:15-1:15

1st Thursday

Real Estate

Primo, Gurnee

5:30-6:30

Docket Editorial Committee

LCBA

12:15-1:15

2nd Tuesday

Criminal Law

LCBA

12:15-1:15

2nd Tuesday (Odd Mo.)

Immigration

LCBA

4:30-5:30

2nd Wednesday

Family Law Advisory Group (FLAG)

LCBA

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

LCBA

4:00-5:00

2 Thursday

Young & New Lawyers

TBD

12:15-1:15

2nd Thursday

Trusts and Estates

LCBA

12:15-1:15

3rd Tuesday

Local Government

LCBA

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

LCBA

4:00

1st Thursday (Even Mo.)

3rd Wednesday 3rd Wednesday 3rd Wednesday (Odd Mo.) 3rd Thursday

To place an ad or for information on advertising rates, call (847) 244-3143

28 The Docket

4th Wednesday

Debtor/Creditor Rights

Varies

5:30-6:30

Family Law

C-105

12:00-1:00

Employment Law

As Needed

5:15-6:15

LCBA Board of Directors

LCBA

12:00 noon

Solo & Small Firms

LCBA

12:00 noon

• RSVP to a meeting at www.lakebar.org. • Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143. • Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

September 2020 29

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: ecognition in advertising before the event and on signage at the event •R • Reception from 4:30 – 6:30 p.m. omplimentary beer and wine. Upgrades available for additional fee. •C

Contact Dale Perrin at dale@lakebar.org to add your name to a reception.