Mikolajczyk v. Ford Motor Co., et al.

October 17,2008, Supreme Court of Illinois Docket No. 104983
Client: Ford Motor Company and Mazda Motor Corporation
Counsel: Mark H. Boyle and Karen K. DeGrand
Result: Jury verdict for Plaintiff remanded, new trial ordered

Synopsis: In Mikolajczyk v. Ford Motor Co., et al., Docket No. 104983 (Ill. October 17, 2008), a case tried by Mark H. Boyle, the Illinois Supreme Court has issued a decision that establishes the necessity of instructing the jury on the elements of the “risk-utility” test relevant to the defense of a product’s design. Mr. Boyle and Karen Kies DeGrand, who heads DBMS’ appellate practice, were part of the defense team that ultimately prevailed in the supreme court.

The plaintiff’s decedent, James Mikolajczyk, was killed when a speeding drunk driver slammed his 4,000-pound Cadillac into the Mikolajczyk vehicle, a 1996 Ford Escort. At trial, the plaintiff proceeded on a strict product liability theory and alleged that the driver’s seat of the Escort was defectively designed, because the seat collapsed when the Escort was struck from the rear. Plaintiff contended that a non-yielding seat would have prevented the death. Ford defended the design of the Escort’s front seat with evidence that a yielding seat’s utility far outweighed its risks, and that no feasible design could have prevented the death of the plaintiff’s decedent given the violent impact. Ford presented evidence that 95 percent of rear-end collisions occur at low speeds, and that, at low speeds, a yielding seat provides much more protection than the rigid seat advocated by the plaintiff.

Based upon the parties’ competing evidence concerning the risks and utility of yielding seats, Ford proposed non-pattern jury instructions addressing the concept of alternate feasible design and instructing the jury that when determining the reasonableness of a product’s design, the overall safety of a product must be considered. The trial court refused Ford’s proposed instructions and gave the jury pattern instructions that focused solely on the consumer expectations test and ignored Ford’s risk-utility defense. In the absence of an instruction to balance the risks and benefits of the seat design or to consider the feasibility of alternative designs, the jury returned a verdict of $27 million; most of the award, $25 million, constituted the jury’s calculation of loss of society damages.

On appeal, the appellate court agreed with Ford’s argument that the jury’s loss of society award was excessive, and should be substantially reduced by the trial court. See Mikolajczyk v. Ford Motor Co., 374 Ill. App. 3d 646 (1st Dist. 2007). Other than to reverse and remand the loss of society award, the appellate court affirmed the circuit court’s judgment.

After the supreme court accepted Ford’s petition for review, the plaintiff cross-appealed for reinstatement of the entire $25 million loss of society award. The supreme court reversed and remanded the case for a new trial, because the trial court abused its discretion by refusing Ford’s non-pattern instructions pertaining to the risk-utility test. The court ruled that, if either party presents evidence sufficient to require the jury to engage in a risk-utility analysis, the instructions should reflect that the consumer expectation test represents but one factor in a broader, integrated risk-utility analysis. Where a product liability defendant introduces evidence that no feasible alternative design exists or that the product’s design presents benefits that outweigh its risk, the defendant is entitled to a corresponding jury instruction, regardless of the plaintiff’s election to frame its case in terms of consumer expectations.

Favia v. Ford Motor Company

March 31, 2008, First District Appellate Court
Client: Ford Motor Co.
Counsel: John A. Krivicich and Karen K. DeGrand
Result: Verdict Affirmed in favor of Defendant

Synopsis: At trial, the jury rendered a verdict for the manufacturer and found that the driver was the sole proximate cause of an accident in which a minivan rolled over, killing four people and severely injuring a fifth person. Plaintiffs claimed that the minivan had defective handling and stability. The Appellate Court rejected plaintiffs’ contentions that the judgment and verdict should be reversed because of certain evidentiary rulings by the judge. Plaintiffs were also rebuffed in their request for a new trial. They had asked the jury to award them in excess of twenty-nine million dollars at the time of the trial.

November 15, 2007, Second District Appellate Court (Culliton)
Client: Defendant Attorney
Counsel: John J. Duffy
Result: Dismissal in favor of Defendant Affirmed

Synopsis: The case involved a failure to draft a trust agreement and will to take advantage of the unlimited gift tax marital deduction in section 2523 of the Internal Revenue Code. The estate planning attorney's client was a wealthy individual with properties in Illinois, Colorado and California. The estate planning documents gave the decedent's children from his first marriage a right of first refusal and access to the properties during specified periods of time. The estate claimed in its suit against the attorney that giving such access and limited control over the California and Colorado properties potentially waived the tax benefits of the marital deduction. Mr. Duffy successfully dismissed the complaint arguing that it was filed just outside the strict and truncated statute of limitations applicable to lawyers drafting estate planning documents. The trial court granted the motion and dismissed the case with prejudice. The Second District affirmed.

Osman v. Ford Motor Company

Illinois Appellate Court, Fourth District, 833 N.E.2d 1011 (4th Dist. 2005)
Client: Ford Motor Company
Counsel: Mark H. Boyle, Karen K. DeGrand, Jennifer Zlotow
Result: Summary judgment in favor of Defendant Affirmed

Synopsis: Plaintiff claimed that the restraint system of the 1988 Ford Escort was defective and that Ford failed to properly warn consumers that the vehicle's restraint system was unsafe if used without a lap belt. Plaintiff's daughter was killed when she was ejected from the vehicle; she was wearing an automatic shoulder harness, but no lap belt. Ford moved for summary judgment on the ground that plaintiff's strict liability, negligence and Consumer Fraud claims were preempted by the Federal National Traffic and Motor Vehicle Safety Act of 1966 and Federal Motion Vehicle Safety Standard ("FMVSS") 208.

The trial court granted Ford's motion for summary judgment on the basis that plaintiff's claims were preempted.

The Fourth District Appellate Court affirmed, finding that plaintiff's claims were impliedly preempted by FMVSS 208. The appellate court analyzed the effect of FMVSS 208 on state law claims for defective seatbelt systems and failure to warn claims. The court found that the Escort's restraint system complied with the requirements of FMVSS 208 and that the lap belt was provided as an additional safety feature. The court found that FMVSS 208 gave car manufacturers a choice of restraint system designs, and that Ford certified the Escort was in compliance with the one of the specific options that FMVSS 208 offered. Because Ford provided the lap belt as an additional safety feature and its use was not required for certification by FMVSS 208, Ford could not have a duty to warn consumers that the vehicle's restraint system allegedly was unsafe if used without a lap belt. Finding for plaintiff would effectively foreclose the use of the restraint system option employed by Ford and would frustrate the flexibility Congress and the Department of Transportation intended by enacting FMVSS 208.

Schulson v. D'Ancona & Pflaum

Illinois Appellate Court, First District, 2004 Ill. App. LEXIS 1394 (1st Dist. 2004)
Client: Commercial Litigator
Counsel: John Duffy, J. Kent Mathewson, Karen DeGrand
Result: Dismissal in favor of Defendant Affirmed

Synopsis: In a legal malpractice case addressing an issue of first impression under the prematurity doctrine, the issue was whether the business owner's alleged legal malpractice claim had accrued before the six-year statute of repose had expired. Plaintiff argued that it had, and that the firm's client, a commercial litigator, erred by not suing the transactional lawyer by way of a third-party complaint for implied indemnity. Dismissal of the complaint was obtained numerous times in the trial court, on the basis that no implied indemnity claim was available, that no damages existed before the expiration of the repose period so no direct action against the transactional lawyer existed, and that the firm's client was under no duty to secure a tolling agreement from the transactional lawyer. The First District affirmed the trial court's dismissal orders and held that no claim for implied indemnity existed. The First District further held that the business owner's purported malpractice claim was barred by the statute of repose before it accrued.

Wade v. Madeira

Illinois Appellate Court, First District
Client: Attorney Defendant
Counsel: J. Kent Mathewson, Karen DeGrand, Kathryn Markowsky
Result: Judgement at Trial in Favor of Defendant Affirmed

Synopsis: Plaintiff had alleged that the defendant, who as attorney for plaintiff's parents had drafted trust instruments and related documents pertaining to inter vivos dispositions of the parent's substantial assets, committed legal malpractice in drafting certain documents and breached his fiduciary duty and duty of impartiality to plaintiff, who with his brother was a beneficiary of the trusts. The First District affirmed the bench verdict for the attorney based both upon a de novo review of the trust documents and plaintiff's failure to establish that any duties were breached, as well as the lack of evidence that the attorney's actions caused plaintiff damage.

Skowronski v. Ford Motor Company, et. al.

Illinois Appellate Court, First District
Client: Ford Motor Company
Counsel: John A. Krivicich, Karen DeGrand
Result: Judgment at Trial in Favor of Defendant Affirmed

Synopsis: Plaintiff claimed that a brake failure on his 1995 Ford Explorer caused the vehicle to strike a utility pole, and that the driver's airbag was too aggressive, causing him to lose consciousness and become comatose. Plaintiff contended that the injury left him with long term cognitive and memory deficits, and forced him to quit the practice of dentistry. Ford contended that plaintiff took a curve too fast, struck the pole, and that someone tampered with the brake system after the accident. In response to plaintiff's contention that Ford used a de-powered airbag in Australia, and later de-powered its airbags in the United States, Ford proved that there was no reasonable alternative to the Explorer's airbag given 1995 airbag requirements by the federal government.

The jury answered special interrogatories finding no defects in the Explorer and finding that plaintiff's driving conduct was the sole proximate cause of the accident.

The Appellate Court affirmed, finding in Ford's favor on all evidentiary issues, including that Ford's later de-powering of airbags in the United States was inadmissible as subsequent remedial measures evidence. The Appellate Court further upheld the use of five special interrogatories to the jury and found that the verdict was not against the manifest weight of the evidence.

Neal v. Yang, et. al.

Illinois Appellate Court, Second District, 816 N.E.2d 353(Ill. App. 1st Dist. 2004).
Client: Physician defendant
Counsel: Robert W. Smyth, Jr., Karen K. DeGrand, Jennifer Zlotow
Result: Summary Judgment In Favor of Defendants Affirmed

Synopsis: In a case tried by Robert W. Smyth, jr., Circuit Court Judge Stephen Walter granted summary judgment, ruling that a physician in a hospital setting, responding to a code 99, may still avail himself or herself to the immunity of the Good Samaritan Act, 745 ILCS 49/25, even if there was a preexisting duty to treat the patient. The Illinois Appellate Court, Second District, affirmed, holding that the plain language of the Act did not require that the physician prove the absence of a preexisting duty to render care to a patient. The physician's preexisting duty to render care is relevant only to how much notice the physician had of the illness. Karen DeGrand prepared the arguments on appeal, with assistance from Jennifer Zlotow and Mr. Smyth.

Morgen v. Ford Motor Company

Supreme Court of Indiana, 797 N.E.2d 1146 (IN 2003)
Client: Ford Motor Company
Counsel: John T. Coleman, John A. Krivicich, Karen K. DeGrand
Result: Judgment at Trial in Favor of Defendant Affirmed

Synopsis: In a case tried by attorneys from DBMS, the jury found in favor of the defendant in a crashworthiness case arising out of an automobile accident. The supreme court reversed the decision of the appellate court and upheld the trial court decision to instruct the jury that the plaintiff’s failure to wear his seat belt, as a rear seat passenger, could be considered misuse of the vehicle and was a defense in the case.

Kambylis v. Ford Motor Company

Illinois Appellate Court, First District, 788 N.E.2d 1 (Ill. App. 1st Dist. 2003)
Client: Ford Motor Company
Counsel: Karen K. DeGrand, Anthony M. Pinto, Kristen M. Gruss
Result: Summary Judgment in Favor of Defendant Affirmed

Synopsis: Plaintiff filed suit claiming injury when the air bag in his automobile did not inflate following an accident. The vehicle was towed to a city pound and eventually destroyed because it was never claimed or recovered. Holding that the plaintiff had a duty to preserve the evidence, the trial court granted summary judgment for the defendant. The appellate court ruled that the doctrine of spoliation of evidence should be extended to a plaintiff’s “passive spoliation,” i.e. spoliation through inaction as opposed to action. The appellate court held that a plaintiff cannot be free to stand by while crucial evidence may be altered or destroyed, and that a plaintiff has a duty to take all reasonable steps to notify the manufacturer of its potential claim and to preserve the evidence.

McCorry v. Gooneratne, Hurley et al.

Illinois Appellate Court, First District, 775 N.E.2d 591 (Ill. App.1st Dist.), leave denied, 786 N.E.2d 186 (2002)
Client: Physician defendant
Counsel: Donald J. Brown, Jr., Karen K. DeGrand, Mark M. Burden
Result: Appeal Dismissed

Synopsis: In a plaintiff's medical malpractice action, summary judgment was granted in favor of the firm's client because the court found no evidence that his alleged negligence had any causal connection to the injuries. The trial court denied plaintiffs' motion to reconsider the decision. Because plaintiff erred in perfecting the appeal given the multiple orders that pertained to the order granting summary judgment, the appellate court granted a motion to dismiss the appeal.

McKnight v. Dean

Seventh Circuit Court of Appeals, 270 F.3d 513 (7th Cir. 2001)
Client: Attorney defendants
Counsel: Richard H. Donohue, Karen K. DeGrand, Virginia L. Beach
Result: Summary Judgment in Favor of Defendants Affirmed

Synopsis: In a complex legal malpractice action that had three layers -- an underlying legal malpractice case that pertained to a Title VII race discrimination action -- trial counsel obtained summary judgment for the attorney defendants who had obtained a substantial settlement for the plaintiff. Accepting defendants' argument that plaintiff had presented insufficient expert testimony to prove that plaintiff would have received a greater award had the attorneys handled his case as plaintiff alleged they should, the Seventh Circuit affirmed summary judgment for defendants.

Kotvan v. Kirk

Illinois Appellate Court, First District, 747 N.E.2d 1045 (Ill. App. 1st Dist. 2000), leave denied, 755 N.E.2d 478 (2001)
Client: Physician defendant
Counsel: J. Kent Mathewson, Karen K. DeGrand, Virginia L. Beach
Result: Defense Verdict Affirmed

Synopsis: Plaintiff appealed a jury verdict in favor of the physician in a medical negligence action. The appellate court held that the verdict was not against the manifest weight of the evidence, and that the trial court did not abuse its discretion in a number of rulings concerning experts, evidence and voir dire.

Lowe v. Ford Motor Company

Illinois Appellate Court, First District, 730 N.E.2d 58 (Ill. App.1st Dist.), leave denied, 191 Ill. 2d 534 (2000)
Client: Ford Motor Company
Counsel: John A. Krivicich, Karen K. DeGrand
Result: Dismissal in Favor of Defendant Affirmed

Synopsis: The trial court’s decision barring plaintiff’s action seeking damages allegedly caused by a defective automobile was affirmed. The court held that the sudden and traumatic injury in an automobile accident put plaintiff on notice that actionable conduct might be involved and, in that situation, the statute of limitations begins to run at the time of the accident.

Bartik v. Yarzagaray

Illinois Appellate Court, First District, 766 N.E.2d 685 (Ill. App.1st Dist. 2000)
Client: Physician defendant
Counsel: Norman J. Barry, Jr., Karen K. DeGrand
Result: Jury Verdict for Plaintiff Reversed

Synopsis: The appellate court reversed a jury verdict for plaintiff in a medical malpractice case and entered judgment as a matter of law based on plaintiff's failure to establish causation through her expert at trial.

Rice v. Ford Motor Company

Illinois Appellate Court, First District, 736 N.E.2d 1145 (Ill. App.1st Dist. 2000)
Client: Ford Motor Company
Counsel: John A. Krivicich, Karen K. DeGrand
Result: Denial of Defendant’s Motion to Dismiss Reversed

Synopsis: Plaintiff filed suit for damages following an automobile collision. The suit was brought before the expiration of the statute of limitations, but the defendant was not served until 44 days after the statue of limitations expired. In a case of first impression under a revised Illinois Supreme Court rule, the court remanded the case for the trial court to consider the plaintiff's actions from the date on which the complaint was filed to the date on which the plaintiff obtained service on the defendant for purposes of determining whether plaintiff was reasonably diligent in serving the defendant prior to the expiration of the statute of limitations.

Brown v. Ford Motor Company

Illinois Appellate Court, First District, 714 N.E.2d 556 (Ill App. 1st Dist.), leave denied, 720 N.E.2d 1089 (1999)
Client: Ford Motor Company
Counsel: John T. Coleman, Richard B. Foster, Karen K. DeGrand
Result: Defense Verdict Affirmed

Synopsis: The administrator of the estate of a deceased passenger and the surviving passenger filed suit, alleging that faulty nylon fuel lines caused the car to explode upon impact with another vehicle, resulting in death and injury to the passengers. The jury found for the defense and answered a special interrogatory that the fuel system was not dangerous and did not cause the fire. The appellate court affirmed the verdict for the defense, holding that the trial court did not abuse its discretion in excluding evidence of subsequent remedial measures or in admitting testimony from an accident reconstructionist and a videotape depicting a reconstruction of the accident.

Norton v. Aetna Casualty & Surety Co.

Illinois Appellate Court, First District, 756 N.E.2d 483 (Ill. App.1st Dist. 1999)
Client: Aetna Casualty Company
Counsel: John A. Krivicich, Karen K. DeGrand
Result: Dismissal of Amended Complaint Affirmed

Synopsis: The appellate court affirmed the dismissal of plaintiff's amended complaint which alleged spoliation of evidence. The appellate court agreed that plaintiff failed to allege a duty owed by defendant to the plaintiff to preserve the evidence -- a valve that allegedly would have been the subject of a product liability action. The court observed that plaintiff had allowed the applicable statute of limitations to run on any products action, and did not allege that he had ever expressed to Aetna a desire to intervene in a subrogation action that Aetna had filed against the manufacturer.

General Casualty Company v. Ford Motor Company

Supreme Court of Wisconsin, 592 N.W.2d 198 (Wis. 1999)
Client: Ford Motor Company
Counsel: Karen K. DeGrand, Mark M. Burden
Result: Dismissal in Favor of Defendant Affirmed

Synopsis: An insurance company paid a vehicle owner’s claim when his car burst into flames in the driveway. The insurer filed a subrogation action against Ford seeking to recover the money it paid to the vehicle owner. The Supreme Court of Wisconsin affirmed the order granting summary judgment on the grounds that the economic loss doctrine applies to consumer as well as business transactions, and that plaintiff's contract claims were barred by the statute of limitations.

State Farm Mutual Automobile Insurance Company v. Ford Motor Company

Supreme Court of Wisconsin, 592 N.W.2d 201 (Wis. 1999)
Client: Ford Motor Company
Counsel: Mark M. Burden, Karen K. DeGrand
Result: Summary Judgment in Favor of Defendant Affirmed

Synopsis: Plaintiff’s insured purchased a vehicle from defendant’s dealership on an “as-is” basis, taking an extended warranty. After the warranty expired, the car caught fire, plaintiff contended, due to an allegedly defective ignition switch. After paying the claim from its insured, the insurance company filed a subrogation action against defendant on tort and strict liability theories. The Supreme Court of Wisconsin held that the “economic loss” theory applied to consumer as well as commercial transactions and precluded recovery in tort for solely economic losses and that plaintiff’s remedies, if any, were based on contract or breach of warranty theories.

Wallis v. Cohen

Illinois Appellate Court, First District, 756 N.E.2d 489 (Ill. App.1st Dist. 1999)
Client: Physician defendant
Counsel: Norman J. Barry, Jr., Karen K. DeGrand
Result: Summary Judgment for Defendant Affirmed

Synopsis: Summary judgment had been granted in favor of defendant after the trial judge struck plaintiff's expert's testimony. The expert had admitted that he did not accept plaintiff's version of the facts as true. The appellate court queried whether plaintiff's statements were sufficiently trustworthy to make the expert's reliance on the statements reliable. The appellate court concluded that the expert's reliance was unreasonable under the circumstances and affirmed the order entering summary judgment for the defendant.

Portwood v. Ford Motor Company

Illinois Appellate Court, First District, 685 N.E.2d 941 (Ill. App.1st Dist. 1997), affirmed, 702 N.E.2d 1102 (Ill. 1998)
Client: Ford Motor Company
Counsel: Richard B. Foster, Karen K. DeGrand
Result: Dismissal of Plaintiff’s Class Action Affirmed

Synopsis: Plaintiffs brought a class action for breach of warranty with respect to allegedly defective vehicles one year after a motion to reconsider the dismissal of the case in another jurisdiction was denied. In affirming the decision of the lower court, the appellate court held that the filing of a class action in a foreign judicial system “does not operate to toll the duly enacted limitations period in Illinois.”