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Chapter 1 — Physical Injuries: Plaintiff’s Perspective - I. [1.1] Scope of Chapter
- II. [1.2] General Considerations
- III. [1.3] Recoverable Damages
- IV. [1.4] Initial Client Interview
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V. [1.5] Documenting Physical Injuries - VI. [1.11] Pleading
- VII. [1.12] Discovery
- VIII. [1.21] Burden of Proof
- IX. [1.22] Motions in Limine
- X. [1.23] Technology in the Courtroom
- XI. [1.24] Jury Instructions
- XII. [1.25] Closing Arguments
- XIII. [1.26] Conclusion
- XIV. Appendix — Sample Forms
- Chapter 2 — Physical Injuries: Defendant’s Perspective
- I. [2.1] Scope of Chapter
- II. [2.2] General Considerations and Theories of Recovery
- III. [2.3] Liability Defenses
- IV. [2.8] Proving and Disproving Recoverable Damages
- [2.9] Recoverable Damages
- Proving Damages
- [2.10] Amount of Damages a Question of Fact
- [2.11] Standard of Proof
- Aggravation of Preexisting Ailment, Condition, or Injury
- [2.12] Aggravation of Preexisting Condition or Ailment Not Separately Compensable
- [2.13] Jury Instructions
- [2.14] Practice Notes
- [2.15] Expert Testimony and “Same Part of the Body” Rule
- V. Defenses and Limitations on Recoverable Damages
- VI. Discovery
- [2.23] In General
- [2.24] General Discovery Provisions, Pretrial Procedure, and Refusal To Comply with Discovery and Pretrial Procedure
- [2.25] Disclosures Pursuant to S.Ct. Rule 213(f)(3)
- [2.26] Requests for Admissions of Fact and Genuineness of Documents Pursuant to S.Ct. Rule 216
- [2.27] Depositions Pursuant to S.Ct. Rule 204
- [2.28] Independent Examination Pursuant to S.Ct. Rule 215
- VII. [2.29] Limiting Recovery at Trial: Motions in Limine
- Chapter 3 — Psychological Injuries: Plaintiff’s Perspective
- I. [3.1] Introduction
- II. [3.2] Defining Pain and Suffering
- III. [3.3] Medical History
- IV. [3.4] Conscious Pain and Suffering
- V. [3.7] Post-Traumatic Stress Disorder
- VI. Future Pain and Suffering
- VII. [3.12] Pre-Impact Pain and Suffering
- VIII. [3.15] Treating Physician Testimony
- IX. [3.16] Economists
- X. [3.17] Lay Witnesses
- XI. [3.18] Intentional Infliction of Emotional Distress
- XII. [3.19] Negligent Infliction of Emotional Distress
- XIII. [3.20] Zone-of-Danger Rule
- XIV. [3.21] Possible Transmission of Human Immunodeficiency Virus
- XV. [3.22] Conclusion
- Chapter 4 — Psychological Injuries: Defendant’s Perspective
- Chapter 5 — Impaired Earning Capacity: Plaintiff’s Perspective
- I. [5.1] Scope of Chapter
- II. [5.2] Introduction
- III. [5.3] Individualized Nature of Injury
- IV. Standard of Proof in Determining Damages: Reasonable Certainty
- V. [5.10] Measuring Damages: Formula for Estimating Impaired Earning Capacity
- VI. [5.16] Final Considerations To Ensure Receipt of Adequate Damages for Impaired Earning Capacity
- VII. [5.17] Conclusion
- Chapter 6 — Impaired Earning Capacity: Defendant’s Perspective
- I. [6.1] Scope of Chapter
- II. [6.2] Distinguishing Impaired Earning Capacity and Lost Wages
- III. Understanding and Disproving Plaintiff’s Alleged Physical Impairment
- [6.3] Interrogatories
- [6.4] Requests for Production
- Analyzing Plaintiff’s Medical, Employment, and Financial Records
- [6.5] Medical Records
- [6.6] Employment Records
- [6.7] Financial Data
- [6.8] Plaintiff’s Deposition
- [6.9] Deposing Plaintiff’s Treating Physicians
- [6.10] Court-Ordered Medical Examination
- [6.11] Experts
- [6.12] Surveillance of Plaintiff
- IV. Challenging the Measure of Plaintiff’s Loss
- V. [6.15] Conclusion
- Chapter 7 — Estimating the Present Value of Diminished Earnings Capacity
- I. [7.1] Introduction
- II. Pecuniary Value of Human Capital
- III. [7.4] Appraising Pecuniary Loss in Disability and Death Actions: Valuation Methods
- [7.5] Valuation Logic
- [7.6] Elements of Compensation
- [7.7] Estimating the Present Value of a Worker’s Future Earnings
- [7.8] Present Value of an Income Stream
- [7.9] Selecting the Appropriate Wage Growth Rate and Discount Rate
- [7.10] Which Interest Rate?
- [7.11] Risk-Return Trade-Off
- [7.12] Covariance Between Short-Term Interest Rates and Wage Growth Rates
- [7.13] Objective Market Evidence Relating to the (i-g) Differential
- [7.14] Reduction for a Decedent’s Terminated Consumption
- [7.15] Valuing Nonpaid Work Services to Household
- IV. [7.16] Working with an Economist
- V. [7.19] Socioeconomic Data Requirements
- Chapter 8 — Proving Special Damages: Medical Expenses and Lost Wages
- I. [8.1] Scope of Chapter
- II. Past Medical Expenses
- [8.2] Requisite Elements of Proof
- Means of Proving the Requisite Elements
- Testimony by the Plaintiff or Other Lay Witnesses
- [8.3] Pre-Arthur Rules
- [8.4] Arthur v. Catour and Wills v. Foster
- [8.5] Causation
- [8.6] Testimony by Treating Medical Professionals or Experts
- [8.7] Testimony by Lienholders
- [8.8] Stipulations and Documentary Means of Proving Past Medical Expenses
- [8.9] Free Medical Services
- Defense Attacks on Past Medical Expense
- [8.10] Inexact Bill
- [8.11] Unnecessary Treatment or Overtreatment
- [8.12] Unreasonableness of Expense
- [8.13] No Causation: Subsequent Injury or Reinjury
- [8.14] No Causation: Prior Injury; Aggravation Issues
- [8.15] Same Area of the Body
- [8.16] Different Areas of the Body
- [8.17] Damages for Aggravation of Preexisting Condition
- [8.18] Plaintiff’s Failure to Mitigate Damages
- [8.19] Collateral-Source Payment of Medical Expense
- III. Future Medical Expenses
- IV. [8.24] Past Lost Earnings
- V. Future Lost Earnings
- Chapter 9 — Punitive Damages: Plaintiff’s Perspective
- I. [9.1] Introduction
- II. [9.2] Purpose and Judicial Philosophy of Punitive Damages
- III. Availability of Punitive Damages
- [9.3] General Principles
- [9.4] Statutory Actions Providing for Punitive Damages
- Common-Law Actions Including Punitive Damages
- [9.5] In General
- [9.6] Willful and Wanton Misconduct
- [9.7] Intentional Acts
- [9.8] Product Liability
- [9.9] Fraud
- [9.10] Defamation
- [9.11] Invasion of Privacy
- [9.12] Retaliatory Discharge
- [9.13] Misconduct by Attorneys
- [9.14] Conversion
- [9.15] Intentional or Reckless Breach of Fiduciary Duty
- [9.16] Liability of Principal for Punitive Damages
- [9.17] Actions in Which Punitive Damages Are Unavailable
- [9.18] Contract Actions
- [9.19] Healing Art and Legal Malpractice
- [9.20] Wrongful-Death and Survival Actions
- [9.21] Local Governmental Tort Immunity
- [9.22] Actions Requiring Proof of Outrageous Conduct
- [9.23] Other Actions in Which Punitive Damages Are Unavailable
- [9.24] Death of the Defendant
- [9.25] Assignment of Punitive Damage Claims
- IV. Procedure
- [9.26] Pleading
- [9.27] Form of Ad Damnum Praying Punitive Damages
- [9.28] Special Treatment of Negligence and Product Liability Cases
- Proof at Trial
- [9.29] General Principles
- [9.30] The Morality Play
- [9.31] Proof of Compensatory Damages
- [9.32] Proof of Defendant’s Worth
- [9.33] Proof of Substantially Similar Occurrences
- [9.34] Jury Instructions
- [9.35] Amount of Punitive Award and Standards of Review
- [9.36] Constitutional Challenges
- [9.37] Attempts at Legislative Reform
- [9.38] Arbitration Proceedings
- V. Pitfalls of Punitive Damages
- VI. [9.42] Appendix — Statutory Actions Allowing Recovery of Punitive Damages
- Chapter 10 — Punitive Damages: Defendant’s Perspective
- I. [10.1] Introduction
- II. Common-Law Grounds for the Imposition of Punitive Damages
- III. [10.5] Necessity of Proving Compensatory Damages To Recover Punitive Damages
- IV. Cases in Which Punitive Damages Are Not Allowed
- V. Pleadings and Discovery
- VI. Punitive Damages at Trial
- VII. Review of Punitive Damage Awards
- VIII. [10.23] Constitutional Limitations on Punitive Damages
- IX. [10.27] Conclusion
- Chapter 11 — Damages in a Wrongful-Death Case: Plaintiff’s Perspective
- I. Wrongful Death Act
- II. [11.6] Damages Pursuant to the Wrongful Death Act
- [11.7] Limitations on Damages
- [11.8] Pecuniary Injuries
- [11.9] Pecuniary Loss — Definition
- [11.10] Presumption of Substantial Pecuniary Loss
- [11.11] Contributory Negligence of Beneficiary
- Elements of Pecuniary Loss
- [11.12] Money and Mortality Tables
- [11.13] Proving Loss of Future Earnings
- [11.14] Past Earnings
- [11.15] Future Earnings
- [11.16] Goods and Services
- [11.17] Loss of Society
- [11.18] Elements of Society
- [11.19] Who May Recover
- [11.20] Evidence To Establish Loss of Society
- [11.21] Elements of Damages Factors Excluded
- [11.22] Discount of Future Damages
- [11.23] Subsequent Spouse or Child
- [11.24] Division of Award
- III. [11.25] Authorization of Deceased Patient’s Medical Records Under HIPAA
- IV. [11.26] Further References
- Chapter 12 — Damages in a Wrongful-Death Case: Defendant’s Perspective
- I. [12.1] Introduction
- II. [12.2] Who Can Institute a Wrongful-Death Action
- III. Individuals Entitled To Recover Under the Wrongful Death Act
- [12.3] Applicable Statutory Provisions and Illinois Pattern Jury Instructions
- [12.4] The Surviving Spouse
- [12.5] Next of Kin
- [12.6] Offspring
- [12.7] Parents
- [12.8] Siblings
- [12.9] Grandchildren
- [12.10] Grandparents
- [12.11] Nieces and Nephews
- Practice Tips
- [12.12] Discovery Issues
- [12.13] Probate Proceedings
- [12.14] Proper Notice to Persons Entitled To Recover
- IV. Recoverable Damages Under the Wrongful Death Act
- V. [12.21] Damages Not Recoverable Under the Wrongful Death Act
- [12.22] Punitive Damages
- [12.23] Funeral and Medical Expenses
- [12.24] Income Before Death
- [12.25] Pain and Suffering
- [12.26] Bereavement of Spouse or Next of Kin
- [12.27] Wealth or Poverty of Spouse or Next of Kin
- [12.28] Speculative Damages
- [12.29] Estate Taxes
- [12.30] Prejudgment Interest
- [12.31] Hedonic Damages
- VI. [12.32] Mitigation of Damages
- [12.33] Affirmative Defense
- [12.34] Passage of Time
- [12.35] Quality of Filial Relationship
- [12.36] Expenditures for Child Rearing
- [12.37] Remarriage
- [12.38] Extramarital Affairs
- [12.39] Health of Decedent
- [12.40] Widow’s Right To Recover Decedent’s Benefits
- [12.41] Expert Opinion Witnesses: Economists and Annuitists
- [12.42] Potential Earnings of Decedent
- [12.43] Decedent’s Income at Time of Death
- [12.44] Decedent’s Occupation and Potential Wage Earnings
- [12.45] Decedent’s Industry, Sobriety, and Thrift
- [12.46] Present Cash Value
- Comparative Fault of Decedent or Contributory Negligence of Spouse or Next of Kin
- [12.47] Contributory Negligence of Spouse or Next of Kin
- [12.48] Comparative Fault of Decedent
- [12.49] Multiple Defendants
- [12.50] Timeliness of Filing a Wrongful-Death Claim
- [12.51] Calculation of Damages
- [12.52] Civil Justice Reform Amendments
- [12.53] Creditors’ Liens
- VII. Defense Practice Tips
- List of Forms
- Index
- Gary P. Annes
Gary P. Annes
Gary P. Annes is a Founder and Partner with Abels & Annes, P.C., in Chicago, where he concentrates his practice in personal injury and medical malpractice. He has frequently written and spoken on issues related to medical malpractice and litigation in general. He is a member of the Illinois Trial Lawyers Association, the American Association for Justice (formerly ATLA), the Public Justice Foundation, the State Bar of Arizona, and the Illinois State and Chicago Bar Associations. Mr. Annes is licensed in Illinois and Arizona and maintains offices in both Chicago and Phoenix. Mr. Annes received his B.A. from the University of Illinois and his J.D. from Loyola University Chicago School of Law.
- Christian D. Biswell
Christian D. Biswell
Christian D. Biswell is a Shareholder and President of Drake, Narup & Mead, P.C., in Springfield, where he concentrates in the areas of civil litigation, insurance and medical malpractice defense, contracts, civil rights, and subrogation. Mr. Biswell received his B.A., M.A., and J.D. from Southern Illinois University.
- Kevin J. Caplis
Kevin J. Caplis
Kevin J. Caplis is Of Counsel to Querrey & Harrow, Ltd., in Chicago, where he focuses his practice in construction and insurance defense. He is a member of the Illinois State Bar Association.He received his B.A. from the University of Illinois at Chicago and his J.D. from DePaul University College of Law.
- Laura A. Castagna
Laura A. Castagna
Laura A. Castagna is a Partner at Kelly & Castagna, LLC, in Bloomington, where she concentrates her practice in personal injury. She has been named an Emerging Lawyer 2017 – 2020. Ms. Castagna received her B.A. from Eastern Illinois University, her M.A. from the University of Illinois at Springfield, and her J.D. from Washington University in St. Louis School of Law.
- Julie L. Cibulskis
Julie L. Cibulskis
Julie L. Cibulskis is a Principal and Shareholder with Speers, Reuland & Cibulskis, P.C., in Aurora. She focuses her practice in the areas of personal injury, wrongful death, professional negligence, premise liability, and vehicle collisions. She also regularly litigates business and commercial cases, including restrictive covenants, trade secrets, shareholder disputes, will contests, and contract cases. Ms. Cibulskis is a member of the American Association for Justice, Illinois State Bar Association, Illinois Trial Lawyers Association, and Kane and DuPage County Bar Associations. She is a past President of the Kane County Bar Association, a member of the Civil Practice and Procedure Section of the Illinois State Bar Association, and a past chair of the Kane County Bar Association MCLE Committee. Ms. Cibulskis has served as a speaker for state and county bar associations. She received her B.A., summa cum laude, from Creighton University in 1995 and her J.D. magna cum laude from Seton Hall School of Law in 1995.
- David B. Collins
David B. Collins
David B. Collins is a Partner with Quinn, Johnston, Henderson, Pretorius & Cerulo, in Peoria, where he concentrates his practice in personal injury and wrongful death defense, as well as employment law. He serves on the Prairie State Legal Services Board of Directors (February, 2012 – present), is a member of the Illinois Supreme Court Committee on Character Fitness (January 2015 – present), and is a Commissioner on the Peoria County Board of Election Commissioners (May 2015 – present). Previously, he served as a law clerk to the Honorable William B. Wombacher (deceased) and the Honorable John A. Gorman of the Illinois Appellate Court, Third District. He has been a lecturer at various IICLE® and Peoria County Bar Association programs. He is a member of the Illinois State and Peoria County Bar Associations, the Appellate Lawyers Association, the Illinois Association of Defense Trial Counsel, the Defense Research Institute (DRI), and American Inns of Court, Abraham Lincoln Inn. Mr. Collins received his B.A. from the University of Iowa and his J.D. cum laude from Northern Illinois University College of Law where he was Editor-in-Chief of the Northern Illinois University Law Review.
- Lawrence DeBrock
Lawrence DeBrock
Lawrence DeBrock is Professor Emeritus of Finance and Dean Emeritus at the Gies College of Business of the University of Illinois at Urbana-Champaign. He has served as a consultant and expertto several public panels as well as foreign governments. He has published numerous articles in economics journals such as the Review of Economics and Statistics, the Bell Journal of Economics, the International Journal of Industrial Organization, the Journal of Law and Economics, the Journal of Labor Economics, and the Journal of Human Resources. Professor DeBrock received his B.S. from Bradley University and his M.A. and Ph.D. from Cornell University.
- Robert E. Elworth
Robert E. Elworth
Robert E. Elworth is a Partner at HeplerBroom LLC in Chicago, where he concentrates his practice on the defense of complex liability claims. He has served as an instructor of business law and environmental law at Roosevelt University in Chicago. Mr. Elworth is a member of the Appellate Lawyers Association, the Defense Research Institute (DRI), and the Illinois Association of Defense Trial Counsel. He is admitted to practice law in Illinois, Indiana, Iowa, Louisiana, Nebraska, Texas, and Wisconsin. Mr. Elworth received his B.A. from the University of Nebraska and his J.D. from Creighton University School of Law.
- Robert J. Franco
Robert J. Franco
No bio available.
- Jeffrey M. Goldberg
Jeffrey M. Goldberg
Jeffrey M. Goldberg is a Partner at Goldberg & Schulkin Law Offices in Chicago, where he focuses his practice on medical malpractice and personal injury cases. He is a member of the American Association for Justice Birth Trauma Litigation Group, a Past Chair of the Illinois Trial Lawyers Association Medical Malpractice Committee, and a Past President of the Trial Lawyers for Public Justice. Mr. Goldberg received his B.S. from Bradley University and his J.D. from the University of Illinois Chicago School of Law.
- Timothy W. Kelly
Timothy W. Kelly
Timothy W. Kelly is a Partner at Kelly & Castagna, LLC, in Bloomington, where he focuses his practice on plaintiff’s personal injury/mediation. A frequent speaker for IICLE® and the Illinois State Bar Association, he is a Past President of the Illinois Bar Foundation and a Past Chair of the Illinois Supreme Court’s Commission on Access to Justice. He has been voted one of the Top Three Attorneys in McLean County by his peers. Mr. Kelly served on the IICLE® Board of Directors (2000 – 2007) and was selected as IICLE® Volunteer of the Year for Publications in 2008. He received his B.S. from the University of Dayton and his J.D. from the University of Dayton School of Law.
- Jeffrey J. Kroll
Jeffrey J. Kroll
Jeffrey J. Krollis a Senior Trial Attorney at Kaveny + Kroll, LLC, in Chicago, where he concentrates his practice in personal injury and wrongful death. Kroll has been named to the Illinois Super Lawyers (2005 – 2020). Additionally, Kroll has been named one of the Top 100 Trial Lawyers in Illinois by the American Association for Justice (formerly ATLA) for ten consecutive years. He received his B.A. from DePaul University and his J.D. from DePaul University College of Law.
- Elizabeth F. Larsen
Elizabeth F. Larsen
No bio available.
- Charles M. Linke
Charles M. Linke
Charles M. Linke is a Professor Emeritus of Finance at the Gies College of Business of the University of Illinois at Urbana-Champaign. Professor Linke has served the University as the IBE Distinguished Professor of Finance, Chair of the Department of Finance, and Associate Dean for Graduate Studies. A contributor to numerous treatises and journals, he is a member of academic and professional organizations including the American Economics Association, the American Finance Association, the American Risk and Insurance Association, and the National Association of Forensic Economists. He received his B.S., M.B.A., and D.B.A. from Indiana University.
- John L. Nisivaco
John L. Nisivaco
John L. Nisivaco is the Managing Partner at Chicago Injury Law, where he concentrates his practice on catastrophic personal injury and wrongful-death cases. He is the Past Secretary of the Board of Governors of the Illinois State Bar Association, Past Chair of the Tort Law Section Council, and Past Chair of Judicial Evaluations for the Alliance of Bar Associations in Cook County. He has been the Editor of the Illinois State Bar Association’s Tort Trends publication for over 20 years. Mr. Nisivaco received his B.A. from Northern Illinois University and his J.D. from DePaul University College of Law.
- Andrew C. Patton
Andrew C. Patton
Andrew C. Patton is a Partner at Franco Moroney Buenik in Chicago. He concentrates his practice on commercial litigation and tort defense. Mr. Patton is a member of the Chicago and Illinois State Bar Associations, the Claims and Litigation Management Alliance (CLM), and the Trucking Industry Defense Association (TIDA). Mr. Patton was recognized as an Illinois Super Lawyer Rising Star for 2016 – 2018 and an Illinois Super Lawyer for 2020. He received his B.A. from Boston College and his J.D. from Indiana University Maurer School of Law.
- Paul L. Price
Paul L. Price
No bio available.
- Timothy J. Reuland
Timothy J. Reuland
Timothy J. Reuland is a Principal and Shareholder with Speers, Reuland & Cibulskis, P.C., in Aurora, where he concentrates his practice in personal injury, wrongful death, products liability, business and commercial, and professional negligence litigation. Mr. Reuland has spoken at various legal seminars conducted by IICLE®, the Illinois Trial Lawyers Association (ITLA), and various bar associations. He is a member of the American, Illinois State, and Kane County Bar Associations, the American Association for Justice (formerly ATLA), and the Illinois Trial Lawyers Association. Mr. Reuland is a member of the Illinois Board of Admissions to the Bar Character and Fitness Committee, recipient of the Kane County Bar Association Community Service Award, and a board member of numerous charitable, religious, and educational organizations. Mr. Reuland has also been selected as a Leading Lawyer in both personal injury law and commercial litigation, and as an Illinois Super Lawyer. He received his B.A. cum laude, President’s Medallion, from Loyola University Chicago and his J.D. cum laude from Northwestern University School of Law, where he was Executive Editor of the Journal of Criminal Law and Criminology.
- Larry R. Rogers
Larry R. Rogers
No bio available.
- Carl F. Schroeder Jr.
Carl F. Schroeder Jr.
No bio available.
Proving and Disproving Damages in Personal Injury Cases (ARCHIVED 2012 EDITION)
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