Articles

Legal Trends Analyzes Key Developments in Personal Injury and Employment Law.

In this issue of Legal Trends, we spotlight two recent significant rulings - one from the Illinois Appellate Court concerning the statute of limitations in sexual abuse cases, and the other from the Seventh Circuit Court of Appeals concerning employee absenteeism. We also discuss a new website launched by the state and the latest statistics from the EEOC.

Tort Cases

Key Ruling in Priest Sexual Abuse Case.

On March 7, 2008, the Illinois Appellate Court issued a landmark opinion, reversing a trial court's order dismissing a sexual abuse case. The Plaintiff, John Doe, claimed that he was sexually molested by Father Kenneth Roberts in 1984. There were previous allegations of sexual abuse against Father Roberts by others as well. By 1984, the Plaintiff was considering entering the priesthood. Father Roberts came to the Plaintiff's school to speak. During the week that Father Roberts was in residence, Plaintiff sought permission to leave class in order to counsel with Father Roberts about his inclinations toward the priesthood. It was during this session in the parish rectory that the alleged abuse occurred. The Plaintiff did not see the priest again. Ultimately, the Plaintiff elected to pursue an occupational path outside of the priesthood. Plaintiff claimed that he did not understand what took place with Father Roberts in 1984 was inappropriate or illegal. In December, 1998, the Plaintiff went to the emergency room at St. Louis University Hospital and told a doctor that he had been sexually abused. During the course of his treatment there, Plaintiff finally came to understand that he had been injured.

The Plaintiff filed his lawsuit against the priest and several diocesan defendants. Plaintiff contended that the diocesan defendants committed fraud in concealing knowledge that Father Roberts had previously sexually abused children. Father Roberts sought dismissal of the claim, arguing that the case was barred by the statute of limitations. The court dismissed the case.

In 1991, the legislature enacted a law which enabled childhood sexual abuse victims to file a claim up to his or her thirtieth birthday. Two years later, the legislature lifted the limitation period, called the statute of repose. In 2003, the legislature again changed the law, changing the statute of limitations to ten years, or five years from the date the person abused discovers or should have discovered that they were abused and that their injury came from that abuse.

Church defendants in other cases claimed that the earlier repose period was a "vested right" which could not be taken away from them. These courts agreed with them until this opinion was issued. For the first time, an Illinois Appellate Court has ruled that the legislature intended to amend the law retroactively. This change in the law will enable more victims of sexual abuse to timely bring their claims.

This is a significant development for victims of sexual abuse. While we feel that Plaintiffs stand in a better position to litigate their sexual abuse claims in court, the opinion is contrary to other appellate court decisions in the state. Until the Illinois Supreme Court rules on the issue, there will likely be some inconsistent rulings in the courts.

State Launches Website Regarding Doctors' Malpractice Claims.

Recently, the Illinois Department of Professional and Financial Regulation launched a website that allows the public to find out whether doctors have settled medical malpractice claims, or whether a claim against them has gone to verdict. The release of the information arose from a compromise made by state lawmakers concerning caps on pain and suffering awards in medical malpractice cases. The site can be found at https://www.idfpr.com/applications/professionprofile/Default.aspx? The site allows a user to search a doctor by county, specialty, or hospital affiliation. Additionally, site users can find out the physician's educational background, where the doctor maintains offices, and whether the doctor participates in state and federal programs. It is expected that insurance companies and the courts will supply the database with medical malpractice settlement and verdict information. The website has information on medical malpractice claims and criminal convictions going back five years. Under current state law, plaintiffs in medical malpractice cases can receive a maximum of $500,000 from a doctor and no more than $1 million from hospitals for non-economic damages. Plaintiffs' lawyers are challenging the constitutionality of the damage cap. We expect that the site will see heavy traffic from attorneys and the public.

Employment Law

Appeals Court Makes Significant Ruling on Employee Absences

On March 21, 2008, the Seventh Circuit Court of Appeals ruled that a worker who missed more than 12 weeks of work for an on-the-job injury did not have an actionable claim under the Family and Medical Leave Act, ("FMLA"). Brian Dotson was employed by BRP US, Inc. (formerly known as Bombardier Motor Corporation), and was injured in 2004 while he was working under a boat. He underwent surgery two months following his injury, and was not given the go ahead to return to work by his doctor until five months later.

Shortly after his injury, his employer notified Dotson about his remaining time under the FMLA, and that they would count that time against him while he collected worker's compensation. When Dotson exhausted his time off, BRP fired him. Dotson filed suit, contending that his employer fired him for filing a worker's compensation claim. The federal district court dismissed Dotson's case, and he appealed.

In affirming the dismissal of his case, the appellate court stated that an employee in Illinois "may be terminated for excessive absenteeism even if the absence is due to a work-related injury covered by worker's compensation." The court also rejected Dotson's argument that BRP violated the FMLA by requiring him to exercise this leave while he was out on worker's compensation. This case will make it more difficult for workers to establish employment claims once they exhaust their time under FMLA.

Employment Discrimination Claims On The Rise.

Federal job discrimination complaints filed by workers against private employers shot up nine percent last year, the biggest annual increase since the early 1990s. The Equal Employment Opportunity Commission recently released data showing allegations of discrimination based on race, retaliation and sex were the most frequent, continuing a long-term trend.

Overall, the federal agency said complaints increased from 75,768 charges filed in 2006, to 82,792 last fiscal year. That is the highest complaint level since 2002, and the biggest annual percentage increase since 1993.

"Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively," said the commission chairwoman, Naomi Earp.

Complaints had been trending downward until 2006, when they increased slightly and then spiked last year. "It's possible that there's a trend developing here and employers need to be aware of this," said commission spokesman David B. Grinberg.

Allegations of discrimination based on race were the leading category of complaints - 30,510 in all, or 37 percent of all filings last year, said the EEOC, which enforces federal anti-discrimination laws among private employers.

An Appellate Court has ruled that the legislature intended to amend the abuse statute retroactively.

Office News

Eugene K. Hollander recently completed the 2008 supplement to his legal treatise, Employment Evidence. The text, available exclusively through James Publishing Company, was first published in 2003.

About the author

Eugene Hollander is a trial attorney who currently heads his own law office in Chicago. Mr. Hollander has tried numerous cases in the state and federal courts. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in employment discrimination claims, personal injury and medical malpractice suits, and various types of commercial litigation.

For more information, visit our web site at www.ekhlaw.com, or contact us directly at:

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