Court leaves $19 million award alone

Chicago Daily Law Bulletin
By Stephanie Potter
Law Bulletin staff writer

The Illinois Supreme Court on Wednesday declined to review 497 cases, including a $19.2 million award to the family of a man killed in a 1999 collision with two tractor-trailer trucks.

William J. Tengler, a 28 year-old tool-and-die maker, was a passenger in a car waiting to make a left turn off of Route 20 near the junction with Union Road near Marengo. A truck driver, David Villarreal, rear-ended Tengler’s vehicle, pushing it into the path of another semi.

Evidence presented at trial showed that Villarreal had cocaine and marijuana in his system, according to the appellate court’s unpublished order in the case. Billie Jo Tengler, etc. v. Preferred Unlimited Inc., et al., No. 1-04-2056.

The verdict at a trial before Cook County Circuit Judge Carol Pearce McCarthy went against Villarreal and the company he drove for, Preferred Unlimited Inc. In their petition for leave to appeal, the defendants argued that the damage award was excessive.

In all, the high court denied 455 petitions for leave to appeal outright. The court dismissed one appeal and issued supervisory orders in 41 cases.

In one of those supervisory orders, the high court ordered the 1st District Appellate Court to consider a doctor’s appeal of $5.45 million award for the delayed diagnosis of breast cancer. According to the Cook County Jury Verdict Reporter, the verdict was the highest reported among breast-cancer related suits where the patient survived.

In 2005, a Cook County jury awarded Marsha Dienstag the $5.95 million in her suit against Dr. Lawrence Margolies. Dienstag had alleged that Margolies failed to refer her to a surgeon for a biopsy even after two mammograms showed signs of cancer.

One of Dienstag’s attorneys, David A. Novoselsky, said the 1st District dismissed Margolies’ appeal in December 2006 because of a procedural issue.

The trial court had ordered a $500,000 remittitur of the verdict, and Margolies apparently filed a notice of appeal before Dienstag accepted the remittitur. Novoselksy said he argued the notice was premature and the appeals court agreed, dismissing the appeal. Now, under the Supreme Court’s order, the case will be heard on its merits.

The high court also declined to hear an appeal involving a negligent spoliation of evidence claim. Robert Baldwin had brought suit against Alexian Brothers Medical Center and Heidi Meador, claiming that he reinjured his right rotator cuff while working with Meador, a physical therapist at the hospital.

While a Cook County jury found against Baldwin on his medical malpractice claim, it awarded Baldwin $490,000 on his claim against the hospital for negligent spoliation of evidence. The hospital apparently did not produce the ”flow sheet,” which showed exercises Baldwin did during the physical therapy session at issue.

In its unpublished ruling affirming the jury’s verdict, the 1st District found the jury could have doubted Baldwin, but also believed the flow sheet could have bolstered his case. Robert Baldwin v. Alexian Brothers Medical Center, et al., 1-06-0725.

The hospital had argued in its petition for leave to appeal that the spoliation count unfairly gave Baldwin two chances to collect on his claim.

The high court also declined to hear:

• An appeal from the parents of a youth killed in a 1996 rollover accident. The 1st District had ruled in March that a trial judge erred by ”stacking” automobile insurance policies. The court found the amount of underinsured motorist coverage should have been determined on a per-policy basis before the policies were stacked.

Jerry W. Jones, et al. v. Country Mutual Insurance Co., No. 1-05-1417.

• An appeal from Farmers Automobile Insurance Association in a class-action suit brought by a former claims adjustor, Christopher M. Loesche over overtime pay. The insurer was seeking a ruling on whether a 52-member class satisfied the numerosity requirement of Illinois’ class-action law.

Christopher M. Loesche v. Farmers Automobile Insurance Association, d/b/a Pekin Insurance Company, 5-05-0481.

• An appeal from the law firm of Judge & James Ltd., now known as Judge, James & Kujawa LLC in a legal malpractice suit brought by Universal Underwriters Insurance Co. In March, the 1st District reversed a grant of summary judgment to Jay S. Judge and the firm. The insurer argues the law firm mishandled an underinsured motorist claim that led to a $3 million settlement.

Universal Underwriters Insurance Co. v. Judge & James Ltd. and Jay S. Judge,No. 1-05-4138.

• An appeal from the mother of a abused baby. Rachel Nelson, the boy’s mother, brought suit against Saints Mary and Elizabeth Medical Center, arguing that emergency room staff failed to detect and report healed rib fractures that signaled child abuse. The infant, Raynoldo Varela, suffered serious injuries, including a brain bleed, weeks later at the hands of his father weeks later. The 1st District in October affirmed a trial judge’s grant of summary judgment to the hospital, finding the hospital had no duty to report suspected child abuse.

Varela v. St. Elizabeth’s Hospital of Chicago, No. 1-05-3718.