Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BOURKE v. CONGER (April 19, 2011)

David Bourke was tried and convicted of murder in 1998. His attorneys, Scott Conger and Wayne Brucar, argued self-defense. The appellate court reversed his conviction on the grounds that the state did not disprove his self-defense claim. Bourke brought suit in federal court alleging that certain state officials suppressed evidence in violation of the Constitution and that his attorneys committed malpractice. He later dismissed all federal claims but the District Court retained is discretionary supplemental jurisdiction over the malpractice claim. The only surviving claim is that his attorneys did not adequately voir dire a potential juror about his views on firearms and alcohol. Bourke's expert concluded that his attorneys did not meet the applicable standard of care. Judge Zagel (N.D. Ill.) granted summary judgment to the attorneys, concluding that Bourke failed to establish that the attorneys' omissions were a but-for cause of the guilty verdict. Bourke appeals.

In their opinion, Judges Cudahy, Flaum, and Kanne affirmed. One of Illinois’ requirements for a legal malpractice claim is that the attorney's breach of duty proximately caused the damages. Here, Bourke had to show that, but for the malpractice, he would have prevailed at trial. The Court recognized that Illinois courts generally prefer to have juries decide proximate cause but added that those same courts do not hesitate to decide it when there are no factual issues. Here, the only evidence in support of the causation is the expert’s conclusion that there was a "reasonable likelihood" that the attorneys' conduct resulted in the guilty verdict. The Court noted that the expert provided no basis for that conclusion. When an expert report provides only conclusions, without supporting analysis or reasoning, it is not enough to create a genuine issue of fact. Summary judgment was proper.

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O’ROURKE v. PALISADES ACQUISITION XVI (March 17, 2011)

Michael O'Rourke accumulated several thousand dollars of debt on his credit card but never paid it. In fact, he assumed the statute of limitations barred any payment obligations. So, when lawyers for Palisades Acquisition XVI, the debt's owner, sent him a collection notice, he ignored it. Palisades filed suit in state court and attached an exhibit that appeared to be, but was not, a credit card bill issued by Palisades to O'Rourke. Palisades eventually dismissed the state court case. O'Rourke brought suit against Palisades in federal court, alleging that the exhibit violated the Fair Debt Collection Practices Act. His theory was that Palisades included the exhibit in order to mislead the state court judge into thinking that it was an accurate statement of the actual debt. Judge Norgle (N.D. Ill.) granted summary judgment to Palisades. O’Rourke appeals.

In their opinion, Judges Flaum, Manion, and Tinder (concurring in the result) affirmed. The Court stated that the Act prohibits both the false representation of a debt's "character, amount, or legal status" and the use of deceptive means to collect a debt. On its face, the Act does not say whether it includes statements made to a state court judge. The Court concluded that it did not. The Act is intended to protect consumers. Courts have extended its protection to third parties only when there is a special relationship (e.g., attorney, executrix) with a consumer. The Court held that the Act only applies to statements directed to consumers, and those with a special relationship to a consumer. Since a state court judge is an impartial decision-maker, the exhibit is not a covered communication.

Judge Tinder concurred in the result but disagreed with the Court’s rationale. He noted that the language of the Act is quite expansive, that its goal is to reduce abusive debt collection practices, and that state judges are powerful participants in the debt collection process. Why, then, should a false and misleading court submission not be a violation of the Act? Judge Tinder did not answer that question because he did not believe it necessary or prudent. Even assuming that the Act applies to communications to judges, O'Rourke loses. Because the exhibit was not misleading on its face, O'Rourke was required to submit extrinsic evidence. Although he submitted an expert report, the trial court excluded it. Without any extrinsic evidence, O'Rourke is unable to establish a genuine issue of material fact and summary judgment for Palisades was proper.

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ZAMECNIK v. INDIAN PRAIRIE SCHOOL DISTRICT (March 1, 2011)

Heidi Zamecnik and Alexander Nuxoll were public high school students who opposed homosexuality on religious grounds. In response to a "Day of Silence" promoted by a group critical of those who harassed homosexuals, they participated in a "Day of Truth" the next following school day. Zamecnik wore a shirt bearing the phrase "Be Happy, Not Gay." A school official covered the words "Not Gay" and prohibited the phrase as a violation of the school’s rule against derogatory comments. Zamecnik and Nuxoll brought suit and sought a preliminary injunction. The district court denied the application for an injunction. Almost 3 years ago, the Court reversed. The Court reviewed the phrase as "only tepidly negative" and concluded that the school district presented insufficient facts to support a conclusion that the words would lead to substantial disruption under Tinker. Judge Hart (N.D. Ill.) eventually granted summary judgment to the plaintiffs, awarded each $25 in damages, and entered a permanent injunction. The permanent injunction is more expansive than the preliminary one in that it runs in favor of all students and includes not just shirts but also all clothing and personal items. The District appeals.

In their opinion, Judges Posner, Kanne, and Rovner affirmed. The Court first rejected the District's argument that injunctive relief was moot because Zamecnik had graduated and Nuxoll had finished his classes and was about to graduate. The Court noted that the injunction now runs in favor of all students, not just the named plaintiffs. Such an injunction is proper as long as the group is specified. The District then argued that it presented enough evidence to survive summary judgment. The Court considered the three types of evidence presented. The first was "negligible" -- an affidavit of a school official recounting statements by unidentified school officials themselves recounting statements by unidentified students purportedly identifying incidents of homosexual harassment. The second type was evidence of the harassment of Zamecnik. But statements that are otherwise permissible cannot be suppressed simply because they are met by violence or harassment by those who oppose the speaker's view. In addition, the harassment was not engendered by the T-shirt, but by the lawsuit. The third piece of evidence presented by the District was an expert report, of which the Court was particularly critical. The opinion section of the expert’s 38-page expert report consisted of 2 1/2 pages and, in the Court's view, failed to satisfy any of the Rule 702 requirements. In fact, the Court noted that his conclusion -- that the phrase at issue is "particularly insidious" in a public school setting -- "comes out of nowhere." The expert described no methodology or research and gave no indication that he is familiar at all with the school the plaintiffs attended. His opinions are nothing more than mere conclusions. The district court was correct in concluding that this evidence was insufficient to survive summary judgment. Finally, the Court affirmed the $25 damage awards as justified by the record.

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MEYERS v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK)(August 30, 2010)

Greg Meyers was an Amtrak pipe fitter for years. It was a difficult job -- requiring lifting, twisting, reaching, etc., frequently in confined spaces. Meyers' size (approximately 350 pounds) made the job even more difficult. He started experiencing problems in 2004. He was referred to Dr. Rosseau, a neurosurgeon, who diagnosed him with cervical spondylosis and carpal tunnel syndrome. Rosseau performed carpal tunnel surgery in 2004 and back surgery in 2008. Dr. Tonino, an orthopedic surgeon, operated on his right shoulder in 2007. Meyers brought suit against Amtrak under the Federal Employers' Liability Act ("FELA"). He alleged that his injuries were caused by Amtrak's failure to use ordinary care. He relied on the Rosseau and Tonino expert reports and a report by his expert ergonomist. Judge Der-Yeghiayan (N.D. Ill.) granted partial summary judgment to Amtrak on statute of limitations grounds but then struck the reports of both doctors and the ergonomist. Without those reports and testimony, Meyers was unable to establish the elements of the offense. The court granted full summary judgment. Meyers appeals.

In their opinion, Judges Kanne, Williams, Hamilton affirmed. The Court addressed only the doctor expert issue. It stated that a party offering an expert witness who was retained to provide expert testimony in a case must comply with the requirements of Rule 26(a)(2). Those requirements include disclosing the bases of the expert's opinions and the reasons for them, which Meyers did not. The Court noted that it had never ruled on whether a treating physician is required to comply with those disclosure requirements if the subject of the opinion was not determined at the time of treatment. It concluded that a treating physician should be held to the same disclosure requirement if the physician is offered for testimony regarding the cause of injury and that testimony is based on a conclusion that was not made at the time of treatment. The testimony of Meyers' two doctors fits that definition and was properly excluded. Without those reports, there is no evidence of causation and summary judgment was appropriate.

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HAPPEL v. WALMART STORES (April 19, 2010)

Heidi Happel was diagnosed with multiple sclerosis in the early 1990s. In 1993, her primary care physician prescribed a pain reliever for an unrelated condition. In fact, she was allergic to the medication. Her physician phoned the prescription to a Walmart pharmacy were Happel typically filled her prescriptions. Despite the fact that Walmart's computer system and Happel's husband both alerted the pharmacist to her allergy, he filled the prescription anyway. Happel immediately went into anaphylactic shock. Her general health quickly deteriorated. She and her husband sued Walmart -- Happel brought a negligence claim and her husband brought a loss of society claim. The Happels listed the original diagnosing physician as a witness but did not disclose him as an expert or tender an expert report. They did list a neurologist as their expert. Just before trial, the Happels attempted to add the diagnosing physician as an expert. The district court denied their request. The court also excluded much of the neurologist’s testimony. In its instructions, the court included the loss of society claim within the negligence claim. It then submitted to the jury a verdict form that contained only a single line for an award of damages. The jury awarded $465,400. The court reduced the award by $150,000 because of a settlement before trial with the primary care physician. The Happels appeal.

In their opinion, Judges Flaum, Williams, and Sykes reversed and remanded. The Court first addressed the expert issues. With respect to the diagnosing physician, the Court noted that the Happels only addressed his qualifications – but that was not the basis for the lower court's exclusion. The Court found no abuse of discretion in the lower court's excluding the diagnosing physician as an expert when plaintiffs failed to disclose him as such during discovery. With respect to the neurologist, the district court excluded his testimony regarding Happel's multiple sclerosis because he had very little experience with multiple sclerosis. The Court found no abuse of discretion. With respect to the damages verdict, the Court noted that the lower court treated the loss of society claim as simply one aspect of the overarching negligence claim. Although the court instructed the jury to return separate verdicts for each of the plaintiffs, the verdict form it provided had only a single line for a damages award. The Court concluded that the jury instructions and the form of verdict were ambiguous. As a result, it is impossible to determine Although it was error to give the instruction and use the form, the Court noted that it still had to find prejudice before granting a new trial. It found prejudice in reference to the set-off amounts. Each individual plaintiff had settled with the primary care physician for $75,000 each. If the jury intended to award each of the plaintiffs more than $75,000, the $150,000 ($75,000 from each) set off is correct. However, if the jury's intent was to award either plaintiff less than $75,000, that plaintiff's set-off would be capped at the amount of the award and the total set-off would then be less than $150,000. Having found prejudice, the court reversed for new trial on damages.

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AMERICAN HONDA MOTOR CO. V. ALLEN (April 7, 2010)

American Honda Motor Co. ("Honda") manufactures motorcycles. One such motorcycle, the Gold Wing GL1800, is the subject of a class action lawsuit. The plaintiffs, purchasers of the GL1800, allege that the motorcycle has a design defect. The defect, they allege, results in excessive shaking of the steering assembly. The plaintiffs moved for class certification. They relied on a report prepared by Mark Ezra for support for their allegation of the predominance of common issues. In his report, Ezra had developed a standard for the dissipation of steering oscillation in motorcycles. He tested one GL 1800 and concluded that it did not meet this standard. Honda argued that the report did not meet the Daubert standard. The district court expressed its concern that the standard was not supported by empirical evidence and was not generally accepted by the engineering community and that his sample size of one was inadequate. Nevertheless, it refused to strike the report and granted the motion for class certification. Honda petitioned for leave to appeal.

In their opinion, Judges Posner, Evans, and Tinder granted the petition, vacated the denial of the motion to strike and the order certifying a class, and remanded. The Court acknowledged that it had not yet considered the specific question of whether a Daubert challenge must be resolved prior to class certification. It has, however, held that a district court must make all legal and factual determinations necessary to ensure that class requirements are met. The Court thus held that a district court must conclusively resolve challenges to an expert report if the report is critical to class certification. Here, the district court started the correct analysis but never actually decided the question. Instead, it simply decided not to exclude the entire report at what it referred to as the "early stage of the proceedings." The district court abused its discretion in doing so. In fact, the Court went on to conclude that the Ezra report should have been excluded under a Daubert analysis. Applying the Daubert factors, the Court noted the lack of evidence that the standard has been generally accepted or that any tests have been performed to support it. The Court also stated that the sample size of one would rarely be sufficient to extrapolate its results to an entire fleet of motorcycles. Without the report, the plaintiffs cannot meet the predomination requirement of class certification.

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WALSH v. CHEZ (October 21, 2009)

Jason Walsh was diagnosed with autism early in his life. His parents took him to Dr. Michael Chez for treatment. Chez prescribed a daily dosage of 50 mg of prednisone. One side-effect of prednisone is its negative impact on the body's ability to fight infection. A short time after the beginning of his prednisone treatment, Jason developed pneumonia. Dr. Chez reduced the prednisone treatment from 50 mg per day to 50 mg twice a week. A few months later, Jason died. Jason's parents brought a medical malpractice case against Dr. Chez. The Walshes submitted expert reports supporting their theory that the abrupt dosage reduction was the cause of their son's death. The district court excluded the reports on the ground that they failed to articulate a standard of care. The court dismissed the case. The Walshes appeal.

In their opinion, Judges Cudahy, Flaum and Wood reversed and remanded. The Court focused on the Rule 26 duty to disclose information regarding an expert's testimony. The purpose of the rule is to allow an opposing party a reasonable opportunity to address the expert's opinion. Examining the reports of the two experts, the Court concluded that each expressed an opinion that the conduct of Dr. Chez was not consistent with the standard of care. Dr. Chez was on notice of the Walshes' theory of malpractice. The fact that there may have been numerous ways of properly weaning Jason from the prednisone does not affect the experts' opinions that Dr. Chez' approach fell below the standard of care.

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