Chicago Trial Attorney Blog : Chicago Trial Lawyer & Attorney : Philip J. Berenz Law Firm : Business Litigation, Personal Injury

The fact finding process in civil cases is known as "discovery" -- that is, where you can ask the other side to turn over any document or other piece of evidence/information in their possession that might have some bearing on your case (provided that you ask for it in fairly descriptive terms).

Many litigants make the mistake of stopping their focus after obtaining discovery -- once they've gathered everything they have from the other side, that's the end of their inquiry. Success or failure in any given case, however, largely depends on the winning side's ability to think outside the box, so to speak.

When it comes to discovery, then, technically speaking, you are not limited to asking the other side to turn over evidence -- you just have to know how to ask. For a very basic example, let's say you are involved in an auto accident in a supermarket parking lot. Both sides claim that the other driver was at fault, but after discovery, there is really no hard evidence other than each driver's word, essentially making the case a "he said, she said" situation that, quite frankly, can often go either way at trial. Now, let's add to the example that this parking lot, as large stores often do, has a surveillance camera in its parking lot that captured the whole accident on tape. In most cases similar to this example, the supermarket would not be a party to the lawsuit and as such, you would not be able to simply send a discovery request to turn over the surveillance tape, as you would, say, a copy of any pictures of the scene of the accident that the defendant may have taken. But this does not mean that you cannot get the surveillance tape that may make or break your case -- again, you just have to know how to ask for it.

A plaintiff (through their attorney) can issue subpoenas for documents and other information (even testimony) that require non-parties to turn over evidence, documents and information, provided that the subpoena meets certain technical requirements. For starters, the requested information has to be reasonably clear -- if you're looking for the surveillance tape, then you must say so. You also have to pay a fee to the person/business you're seeking information from, usually starting at around $25.

Further, the power of such subpoenas -- if all of the steps are followed properly -- are real consequences for failing to comply: the person/business may even be brought into court to explain to the Judge why they shouldn't have to turn over the evidence, or else they may face some hefty fines and even perhaps be held in contempt of court! That's very powerful!

The point to be had is that the difference between winning and losing is often the party's willingness to go above and beyond and take full advantage of all the litigation tools at your disposal. 

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation--maybe subpoenas will be the only way to get the evidence you need to prove your case. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Conversations and communications between you and your attorney are covered by what is known as the attorney-client privilege. Privilege attaches to such conversations and communications so that you and your lawyer can freely discuss your matters without being judged and without hesitation, amongst other reasons. 

To be entitled to the protection of the attorney-client privilege, a claimant must show that:

(1) a statement originated in confidence that it would not be disclosed

(2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and

(3) it remained confidential.

See Pietro v. Marriott Senior Living Servs., 348 Ill. App. 3d 541, 551 (1st Dist. 2004).

The policy underlying the attorney-client privilege is to encourage full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of information. See People v. Jacobson, 119 Ill. App. 3d 103, 104 (1st Dist. 1983). Strict confidentiality, promoted by permanent protection from disclosure, is the very essence of the existence of the attorney-client privilege; it is also the basis for allowing such communications complete exemption from discovery. Jacobson, 119 Ill. App. 3d at 104. Privileged communications are at the instance of the client permanently protected from discovery. Id. at 105.

On the other hand, if a conversation, for example, took place in a crowded elevator, or if you went and told a co-worker afterward what was said, then the communication may not be privileged because it wasn't confidential.

Another key point is that the privileged conversation has to generally be for the purpose of giving legal advice, and the advice can't be used to further or cover up a crime. While this might all sound pretty straightforward, application of this privilege can come up in very unexpected ways - and sometimes in matters years down the road that you couldn't possibly envision at the time you made the statements.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Parties to a lawsuit (usually with the assistance of their attorneys) are under a duty to answer everything truthfully, but that doesn't mean that it's always easy to get a "straight" answer out of someone.

This is one of those areas that distinguishes attorneys -- recognizing the difference between a party giving an affirmative yes or no answer, and half-measures such as "I think" or "I believe that is correct." A good attorney will not accept half-measures for answers and make further (hopefully many) inquiries to get to the truth.

While this might seem like something trivial, half-measures and "couched" answers can actually chip away at even the best of cases. One way to avoid these problems and "keep everyone honest," so to speak, is Supreme Court Rule 201(k). This rule allows an attorney that notices an incomplete or evasive answer to confront the other attorney and seek clarification to any lingering questions. If this fails, then a party may bring a motion before the Judge and let the Court decide if the question was adequately answered. The reasoning behind this rule is that everything in even the simplest cases can be won or lost in the smallest of details.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation--and help to ensure you are getting truthful answers. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most sensitive parts of filing a lawsuit after you've been the victim of an injury is the extent to which your private medical issues must come to light.

It is unfortunate that you have to give complete strangers access to your most private records, and it is an unfortunate side effect of pursuing your rights. Steep barriers prevent most people from having access to your medical information -- even your own attorney cannot ask for one paper from any of your doctors until the doctor has received a signed medical release pursuant to law from you personally.

Another important protection is the line of cases in Illinois known as the "Petrillo Doctrine," which prevents a defense attorney from so much as contacting your doctor.

In the case that set out the rule (Petrillo v. Syntex Laboratories, Inc.), the court ruled that no third party could permissibly contact a plaintiff's medical providers -- and as the later cases that would fashion this "rule" into a "doctrine" established, this includes defense attorneys, insurance claims adjustors, anyone.

The only way a defense attorney can obtain your medical records, or even appear for a deposition to take the information from your doctor(s), is by issuing a subpoena.

Collectively, these laws and rules are important, because they recognize the sensitive nature of filing a lawsuit for damage to your health, and they put as many mechanisms as possible in place to protect you and your privacy -- especially in such sensitive times.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most important components of the litigation process leading up to trial is the discovery deposition. Deposition is a fancy legal word for a process by which a person sits down in front of a court reporter and gives testimony under oath that is transcribed by that court reporter.

A deposition may end up being the only time that a person is allowed to tell their "story" in their own words while being asked questions by an attorney. This process is so important that the Illinois Supreme Court Rules allow parties to take depositions in person simply by issuing a notice to the other side -- stated otherwise, they don't have to obtain permission from the court and issue a subpoena like they would for someone like an eye witness to an accident or a treating doctor or any person with information in relation to a situation such as a breach of contract in the business context.

Interestingly enough, however, courts are beginning to look favorably on using technology to make what is traditionally a rigid process into a more convenient, accommodating system.

Under the new Illinois Supreme Court Rule 206(h), parties can make a special request to take a deposition by telephone, video conference, or other live technological method. Because it is often debatable as to why many similar laws are enacted, the rules committee went out of it's way in this case to specifically note that:

The Committee is of the opinion that the apparent acceptance and utilization of telephonic and other remote electronic means depositions demonstrate that there is no need to require a party to obtain an order on motion to proceed with such depositions absent a written stipulation. Therefore, the Committee recommended the elimination of such a requirement so that the depositions may proceed by notice.

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The Importance of Completeness

In every case, there is a "discovery process" where parties exchange information and begin to weed out the issues of a case. Many attorneys make the mistake, however, of assuming that just because materials (be they interrogatories (a fancy word for "questions" in writing), requests to produce documents, requests to admit facts, amongst others) have been sent to the opposing counsel, that the issue of discovery is complete. This, however, is most certainly not the case, and it can often lead to tensions between the attorney and the client.

Courts take the rules governing discovery very seriously, and one of the rules most commonly argued over is the rule of completeness. When you complete discovery materials, your attorney will almost always require you to sign a statement known as an "affidavit of completeness" that states that the answers you gave were true and complete. For example, the Illinois Supreme Court even requires such be signed by affidavit (See Il. Sup. Ct. R. 214).

The problem with this, however, is that in the law, as is often true in life, open-ended questions often lead to vague answers. Courts often conclude, when confronted with such vague and ambiguous answers, that the answer should be interpreted as "yes," even if that was not your true intent. This often comes up in the context of the often-mentioned Requests to Admit Facts. Many of these proposed facts set forth broad statements that you may not have enough personal knowledge or information to answer. Following in line with this rule, however, simply stating that you cannot answer the question is the same as admitting that the statement is true, strange as it may seem. This is an easy mistake to make, but it is an incredibly difficult mistake to fix. Even if an attorney catches such a mistake in time, he will most likely then be forced to scramble at the last minute to contact the client, clarify the response, and fill out the neccessary documents to correct such an error.

An open line of communication between attorney and client is critically important -- when clients don't understand the complex language many attorneys use in their discovery requests, the attorney needs to be available to explain the questions, and likewise, when an attorney needs to make corrections and deal with situations as they arise, the client needs to be available as well. The consequences of a breakdown in the communication process are dire, and unfortunately they are quite common. This is why it is important to seek attorneys who can communicate effectively with their clients. Likewise, it is important for the clients to make the effort to communicate and tell the whole story to their lawyers.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure your case is handled in a "complete" fashion - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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A case often develops and "takes on a life of its own" due to the strategies attempted to be employed by defense attorneys. Essentially, a trial strategy can often draw a striking contrast between the way an incident seemed at the time of its occurrence, and how things are actually presented at trial.

A good trial attorney must keep the Judge and Jury focused on the truth at all times - and with the utmost passion.

For example, defense attorneys might approach the damages component of many plaintiffs' claims by arguing over "causation." As a matter of background, most personal injury cases are rooted in the law of negligence. In order to sustain a claim, a plaintiff must show four (4) main points:

(1) that the defendant owed him/her a duty not to harm / cause injury;

(2) that the defendant breached that duty;

(3) that there is a direct causal link between the defendant's conduct and the plaintiff's injury (the "causation" component); and

(4) that the plaintiff suffered damages.

When one thinks of a standard personal injury case, the common consensus is that the parties are arguing over a matter of perception -- essentially, who's fault the incident really was. However, defense attorneys might concede fault or "admit liability" but then spend the lead-up to trial and focus their entire efforts during the entire case and subsequently during the trial, itself, arguing that the plaintiff's injuries were not caused by the defendant's conduct (negligence). In plain English, the defense attorney will argue "Injured Sally's bad back is the result of age and arthritis and not due to the rear-end car accident while Sally was sitting at a red light when Joe Defendant collided with Sally at 30 miles per hour." In fact, defense attorneys will often hire a medical expert (a medical doctor) to analyze x-rays and other medical evidence to show arthritis or any other pre-existing conditions.

From a tactical standpoint, this is an interesting approach, because it changes the focus of what a case is really about. Instead of arguing over which driver had the right-of-way, a case becomes about whether that visit to the chiropractor was necessary, or why a plaintiff took an extra week to begin physical therapy.

Attorneys can bicker back and forth on these issues for days on end, and some of them actually do. Injuries are tricky sometimes -- they aren't always immediately apparent. Or sometimes, people do not like to admit to themselves that they are injured and take a "wait-and-see approach" to seeking medical treatment. In retrospect, it's easy to make an armchair diagnosis, so to speak, and come to the conclusion that someone should have taken a particular course of treatment, but this approach isn't necessarily consistent with the way things appear at the time of an incident.

This is an important consideration to keep in mind when seeking an attorney -- no case is perfect, and what separates a skilled plaintiff's attorney is the ability to clearly make the "causation" and "link" between the current injury and the accident and to carefully address any pre-existing problems and "carve out" such issues. Likewise, it is important that an injured party clearly communicate with his/her doctor the injury so it is well-documented in the medical records.

If you are in an automobile accident, get all the information possible immediately and take notes. Then contact an attorney immediately. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

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If you or a loved one has taken Paxil® during pregnancy, and your child has suffered a birth defect, contact us here immediately or submit a form here for a free case evaluation here and we will contact you and specifically about Paxil cases involving the following birth defects:  ventricular septal defect (“VSD”) (so-called hole in the heart), atrioventricular septal defect (AVSD), any heart defect, omphalocele, craniosynostosis, anencephaly (causing still born birth), "spina bifida" (so-called Neural Tube Defects), Anal Atresia, any limb defects – club foot, ear malformation, etc., and other birth defects.  

We will talk to you about your case or let you talk with another Paxil Birth Defect Attorney

What is Paxil?

Paxil®

Paxil® (paroxetine) is one of a class of medicines called Selective Serotonin Reuptake Inhibitors (SSRIs). Paxil was first approved in the United States on December 29, 1992, for the treatment of depression. Paroxetine is available as Paxil®, Paxil CR®, Pexeva®, and generic paroxetine hydrochloride. It is manufactured by GlaxoSmithKline.

What Injuries Can Paxil/Other SSRI’s Cause?

Since September, 2005 information has been coming out that Paxil may cause birth defects, including cardiac (heart), pulmonary (lung), neural-tube defects (brain and spinal cord), craniosynostosis (abnormally shaped skull), infant omphalocele (abdominal wall defects), club foot (one or both feet turn downward and inward), and anal atresia (complete or partial closure of the anus).

The FDA issued an alert in July 2006 warning about the increased risk of Neonatal Persistent Pulmonary Hypertension (PPHN) by mothers taking SSRI antidepressants such as Celexa (citalopram), Fluvoxamine, Lexapro (escitalopram), Paxil (paroxetine), Prozac (fluoxetine, Symbyax (olanzapine and fluoxetine) and Zoloft (sertraline).

What is Neonatal Persistent Pulmonary Hypertension (PPHN)? 

In the womb, the pathway of your baby's blood circulation is different than it is after birth. In the uterus, a baby's circulation bypasses the lungs, and instead the placenta, through the umbilical cord, serves as the organ of gas exchange. The pulmonary artery - which, after birth, will carry blood from the heart to the lungs – in utero sends blood directly back to the fetal heart through a fetal blood vessel called the ductus arteriosus.

When a baby is born and begins to breathe air on their own, the baby’s circulatory system
is shifting from the placenta to the lungs serving as the organ of gas exchange. The pressure in the lungs changes as air enters and inflates the lungs. Because of this, the ductus arteriosus, which previously supplied the fetal heart with blood, closes for good. Blood returning to the heart from the body can now be pumped into the lungs, where oxygen and carbon dioxide are exchanged. The blood is then returned to the heart and pumped back out to the body in an oxygen-rich state.

A dramatic cardiopulmonary transition occurs at birth, characterized by a rapid fall in pulmonary vascular resistance (PVR) and pulmonary artery pressure and a 10-fold rise in pulmonary blood flow. In some newborns, however, the normal decrease in pulmonary vascular tone does not occur, and the result is persistent pulmonary hypertension of the newborn (PPHN).

In a baby with PPHN, the fetal circulatory system doesn't "switch over." The ductus arteriosus remains open, and the baby's blood flow continues to bypass the lungs. Even though the baby is breathing, oxygen in the breathed air will not reach the bloodstream. Because the blood returning from the body is unable to enter the lungs properly - and instead flows through the still-open ductus arteriosus - it returns to the heart in an oxygen-depleted state.

What are atrial and ventricular septal defects (VSDs) of the heart?

A ventricular septal defect (VSDs) is a defect in the ventricular septum, the wall dividing the left and right ventricles of the heart. In other words, VSDs are holes in the walls of the chambers of the heart.  A VSD can be detected by cardiac auscultation. Normally, a VSD causes a pathognomonic holo- or pansystolic murmur. VSDs can be diagnosed by non-invasive cardiac echocardiograms.

Atrioventricular septal defect (AVSD) or atrioventricular canal defect (AVCD) is characterized by a deficiency of the atrioventricular septum of the heart.

If there is a defect in the septum, it is possible for blood to travel from the left side of the heart to the right side of the heart, or the other way around. Since the right side of the heart contains venous blood with a low oxygen content, and the left side of the heart contains arterial blood with a high oxygen content, it is beneficial to prevent any communication between the two sides of the heart and prevent the blood from the two sides of the heart from mixing with each other.

AVSDs can be detected by cardiac auscultation as they cause atypical murmurs and loud heart beats.  VSDs also can be diagnosed by non-invasive cardiac echocardiograms.

What are the abdominal birth defects associated with Paxil and other SSRIs?

GlaxoSmithKline (“GSK”), maker of Paxil, sent a letter to doctors and healthcare professionals in September, 2005 advising them of a Paxil label change that, according to data obtained from the National Birth Defects Prevention Study of infants, women who took an SSRI-antidepressant were more likely than those who were not exposed to have an infant with omphalocele, which is an abnormality in newborns in which the infant's intestine or other abdominal organs protrude from the navel. The strongest effect was reported to be with Paxil, paroxetine, which accounted for 36% of all SSRI exposures.

An omphalocele is a type of abdominal wall defect in which the intestines, liver, and occasionally other organs remain outside of the abdomen in a sac because of a defect in the development of the muscles of the abdominal wall. The omphalocele can be mild, with only a small loop of intestines present outside the abdomen, or severe, containing most of the abdominal organs. In severe cases surgical treatment is made more difficult because the infant's abdomen is abnormally small because it had no need to expand to accommodate the developing organs. The presence of an omphalocele is often associated with cardiac defects.

What is Craniosynostosis?

Craniosynostosis is a condition in which one or more of the fibrous sutures in an infant skull prematurely fuses. This results in restricted skull and brain growth. Because the brain cannot expand in the direction of the fused suture, it is forced to grow in the direction of the open sutures, often resulting in an abnormal head shape and facial features.

In an infant, the skull is not one solid bone, it is bony plates separated by fibrous sutures. The infant's skull consists of the metopic suture, coronal sutures, sagittal suture, and lambdoid sutures. These sutures allow the skull to expand as an infant's brain develops. Over time these sutures eventually fuse into the solid skull.

Surgery is typically used to separate the fused sutures of the skull as well as to reshape the skull. To treat the cosmetic troubles, a combination of orthodontic and orthognathic surgery can be used to relieve some of the midface deficiency.

GSK - GlaxoSmithKline included in the September, 2005 "Dear Doctor" letter that the authors of the above study also found an association of exposure to any SSRI-antidepressant and giving birth to an infant with craniosynostosis (a congenital defect-present at birth. The connections between sutures-skull bones, prematurely close during the first year of life, which causes an abnormally shaped skull.)

Other Birth Defects

There is ongoing investigation by attorneys into a possible link between Paxil and birth defects such as:

Club Foot:  A recent study conducted by the Institute of Reproductive Toxicology at the University of Ulm, Germany and a recent study from the Slone Epidemiology Center at Boston University found that some women who took  SSRIs  throughout their pregnancy had children born with club feet. True Club foot is a malformation. The bones, joints, muscles, and blood vessels of the limb are abnormal. An infant with club foot has a foot that is inturned, stiff and cannot be brought to a normal position.

Neural Tube Defects: Neural tube defects (or NTDs) are birth defects of the brain and spinal cord. The two most common neural tube defects are spina bifida and anencephaly. In spina bifida, the fetal spinal column doesn't close completely during the first month of pregnancy. There is usually nerve damage that causes at least some paralysis of the legs. In anencephaly, much of the brain does not develop. Babies with anencephaly are either stillborn or die shortly after birth. Source: National Institute of Child Health and Human Development

Anal Atresia: Also called Imperforate anus, anal atresia is a congenital malformation in which the normal perforation we call the anus, is absent.  The end of the intestinal tract has not perforated the skin in the perineal area. Atresia is the absence of a normal opening or failure of a structure to be tubular.

Links:

FDA Advising of Risk of Birth Defects with Paxil:  Agency Requiring Updated Product Labeling (FDA news release, September 8, 2005): 

http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2005/ucm108527.htm

information concerning today's announcement is available on FDA's Web site at:

Public Health Advisory: http://www.fda.gov/cder/drug/advisory/paroxetine200512.htm and

Click this link for Paxil Information from FDA: 

http://www.fda.gov/cder/drug/infopage/paroxetine/default.htm

News links:

National Briefing | Science And Health: Warning On Paxil (Nytimes 1/1/2006):
http://query.nytimes.com/gst/fullpage.html?res=9C03E1DA1E3EF932A35751C1A9609C8B63

Web MD:  New Study Links Paxil to Twice as Many Birth Defects as Other Antidepressants:
http://www.webmd.com/baby/news/20050927/paxils-birth-defects-warning-strengthened

Glaxo E-Mails Over Paxil Study Must Be Turned Over: http://www.bloomberg.com/apps/news?pid=20601085&sid=aOcgK5LorDgU

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