CJ Gibbs has been invited to join the CLM

CJ Gibbs
Lowis & Gellen LLP is pleased to announce that CJ Gibbs has been invited to join the prestigious CLM. The CLM is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys. Through education and collaboration, the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

CJ Gibbs dedicates his practice solely to civil litigation. His primary focus is coordinating the defense of general liability matters for self-insured private and public retailers on a national and regional basis. His experience ranges from coordinating with in-house clients concerning claims and risk management to all stages of litigation, including mediation, arbitration, and trial. Furthermore, Mr. Gibbs has experience defending tire defect claims nationwide ranging from minor injury claims to catastrophic injury and wrongful death claims.

Cahill Edits Leading Treatise on Commercial Bankruptcy Litigation

Comercial Bankruptcy Litigation 2d Edition

Comercial Bankruptcy Litigation 2d Edition

Thomson Reuters has published its comprehensive and annually-updated treatise, Commercial Bankruptcy Litigation, 2d Edition (Jonathan P. Friedland, Elizabeth Vandesteeg & Christopher M. Cahill eds., 2017). Our Christopher Cahill co-authored Chapter One and has served as Executive Editor of the treatise since 2014.

One of West Publishing’s best-selling titles since 2009 and weighing in at more than 1,600 pages, Commercial Bankruptcy Litigation is the result of an effort by approximately 50 leading restructuring professionals, from more than 20 distinguished firms.

2017 Super Lawyer Announcement

Lowis & Gellen is proud to announce that four of our attorneys were named to the 2017 Super Lawyers list by Illinois Super Lawyer Magazine.

The Super Lawyers designation is based upon peer recognition and professional achievement, and no more than five percent of lawyers in each state are selected by the research team to receive this honor.

We congratulate the following attorneys:
Pamela Gellen—Top Rated Medical Malpractice Attorney, 10th consecutive year
Gerald Haberkorn—Top Rated Business Litigation Attorney, 10th consecutive year
Andrea Kott—Top Rated Medical Malpractice Attorney, 4th consecutive year
Robert Smeltzer—Top Rated Business Litigation Attorney, 4th consecutive year

Kristin Ahmadian and Caitlin Ewing Speak to the Illinois Association of Defense Trial Counsel, Young Lawyers Division regarding HIPAA; Seminar Moderated by Kelly Pachis

Kristin Ahmadian and Caitlin Ewing, both Chicago-based attorneys at Lowis & Gellen, recently spoke to the Illinois Association of Defense Trial Counsel, Young Lawyers Division at a seminar on “Medical Litigation Fundamentals: A Young Lawyers Guide to Successfully Defending a Medical Malpractice, Personal Injury, Workers’ Compensation or Tort Case.” Their presentation was titled “HIPAA Basics for Civil Litigation.” Ms. Ewing discussed the history of HIPAA and its requirements. Ms. Ahmadian discussed the enforcement of HIPAA and recent settlements for HIPAA violations. The seminar was moderated by Kelly Pachis, an attorney in Lowis & Gellen’s Chicago office.

Appellate Court Affirms Summary Judgment in Favor of Pharmacy in Wrongful Death Lawsuit

Andrea H. Kott and Patrick S. Viktora won a motion for summary judgment on behalf of a pharmacy defendant in a wrongful death action following the overdose of a 53-year-old male. The plaintiff alleged the pharmacy filled and dispensed multiple prescriptions of Methadone in quantities and time frames that were not appropriate. Ms. Kott and Mr. Viktora successfully argued that there was no common law or statutory duty to refuse to fill a prescription because it is for an “excessive” quantity, and that a pharmacist was not required to second guess the physician’s medical judgment in writing the prescription. On appeal the plaintiff argued that the existence of the “prescription monitoring program” placed pharmacists in a better position than doctors to discover “excessive” prescriptions, creating a duty for a pharmacist to warn the patient or notify the physician that the dose was excessive. Ms. Kott and Mr. Viktora, with the assistance of Kevin J. Clancy, argued on appeal that the plain language of the prescription monitoring program did not impose a duty on pharmacists to second guess physician’s prescriptions. The First District Appellate Court agreed with Ms. Kott, Mr. Viktora and Mr. Clancy, and held that the pharmacy had no duty to monitor the decedent’s methadone prescription history, to attempt to determine whether such use was “excessive,” or to communicate a corresponding warning to the prescribing physician or the decedent.

 

The Appellate Decision can be found at Hernandez v. Walgreen Co., 2015 IL App (1st) 142990.

Summary Judgment in Florida “Wheel-Off” Case

Lowis & Gellen’s Florida team headed-up by Deb O’Brien won Final Summary Judgment in a case where the Plaintiff alleged that Defendant negligently installed new tires on his vehicle. According to Plaintiff, five months and 16,000 miles after the tire installation, his right front tire and wheel spontaneously detached from his vehicle while he was driving, causing him to crash, and resulting in significant spinal injury. The Defense argued that Plaintiff failed to meet his burden of proof because he had no direct evidence that his tires were not properly installed, and that Plaintiff could not bridge the evidentiary gap through expert testimony without the broken parts of his vehicle, which Plaintiff failed to retain. In granting Summary Judgment, the trial court ruled that there was “no evidence sustaining Plaintiff’s claim in the record.” The trial court also ruled that the affidavit of Plaintiff’s expert filed in opposition to Summary Judgment was insufficient to create a triable issue of fact because the affidavit was not made on personal knowledge, and was conclusory and speculative.

Big Week for Enforcement of Continuing Guaranties

Guaranties – a promise to perform the obligation of a borrower by a third-party – are documents that are often litigated but there is seemingly a dearth of Illinois case law on the topic. This week, the Second District and the Fourth District Appellate Courts of Illinois weighed in reinforcing Illinois’ courts long-standing history of enforcing commercial guaranties as written.

Picture this: you are a large commercial lender originating a new loan transaction with an established real-estate company. The potential borrower needs financing for properties in multiple counties. As security for the loan, the borrower will execute mortgages for the real estate and the principals of the borrower agreed to execute continuing guaranties covering the entire borrowing relationship. The borrower succumbed to the financial crisis of 2008 and you need to begin foreclosure proceedings.

Per the Illinois Mortgage Foreclosure Law, your counsel files suit in each county in which the real property is located. In your complaints, your counsel seeks to obtain a judgment for breach of the commercial guaranty. After years of litigation, you secure judgment in the first county. Thereafter, you secure judgment in the second county. At that point, the guarantors argue – for the first time – that the judgment in the second county is barred by the doctrine of res judicata.

This is the issue that was addressed by the Appellate Court for the Second District of Illinois in BMO Harris Bank, N.A., v. K & K Holdings, LLC, 2016 IL App (2d) 150923. In that case, the Court affirmed the trial court’s decision rejecting the guarantor’s argument that the claims brought against them in DuPage County relating to a single commercial guaranty are barred by the doctrine of res judicata because of a judgment entered against them on the same commercial guaranty in Kane County. The Court agreed with the Bank’s argument that while the claims against the guarantors in each county were based on the same commercial guaranty, the claims were not based on the same underlying transaction.

In its reasoning, the Court focused on the specific language in the guaranty and the underlying purpose of the guaranty. Specifically, the Court honed in on the language of the guaranty establishing “that the parties contemplated that there would be multiple loan transactions, each of which would trigger potential liability under the guaranty.” See ¶ 14. The Court specifically rejected the guarantors’ attempt to narrow the transactional test by focusing on the continuing-obligation language of the guaranty. The Court explained that “[r]ather than having [the guarantors] enter into a new guaranty for each loan, they opted for a continuing guaranty that would create a new obligation for [the guarantors] for each new loan.” See ¶ 15. In the end, the Court affirmed the trial court’s ruling leaving the Bank’s judgment intact.

Similar to the Second District, the Appellate Court for the Fourth District of Illinois also enforced the plain language of a continuing guaranty. In Navistar Financial Corp. v. Capitol Ready-Mix, Inc., 2016 IL App (4th) 150419, the court affirmed the trial court’s judgment. In that case, the appellant executed an “interlocking guaranty” whereby the appellant agreed to be liable for any then-existing or future debt owed to the appellee. The appellant’s chief argument was that there was no meeting of the minds relating to a debt obligation incurred at a future date.

The Court explained that when a future course of dealing is woven into the terms of a guaranty, it is a continuing guaranty. See ¶ 29. “Continuing guaranties of future obligations are valid, binding, and have a long history in Illinois.” Id. Relying on the specific language of the continuing guaranty, the Court rejected the appellant’s argument.

To discuss this topic further, please contact Tom Peckham (tpeckham@lowis-gellen.com). You can find more information about the firm at www.lowis-gellen.com.

Leading Lawyer

Selected by their peers, Lowis & Gellen LLP is proud to announce 9 of our attorneys were listed as Leading Lawyers in 2015. Leading Lawyer selects only the most respected and experienced lawyers state and worldwide.

Our Firm’s Leading Lawyers ( listed below) are experienced in Alternative Dispute Resolution, Appellate Practice, Aviation Practice, Banking and Financial Services, Bankruptcy and Creditors Rights, Casualty Defense, Commercial Finance, Commercial Litigation, Commercial Transactions, Construction Law, Corporate Governance and Compliance, Corporate Practice, Cross-Border, Director and Officer Liability, Employment & Labor Law, Food Law, General Liability Practice, Guardianship Law, Health LawIntellectual Property, Long Term Care, Medical Malpractice Defense, Municipal Defense, Pharmaceutical & Medical Device Litigation, Pharmacist Liability, Premises Liability, Product Liability, Public Utilities and Real Estate Law.

James Bream                     Kevin Clancy

Pamela Gellen                  Gerald Haberkorn

Andrea Kott                       Brian Levin

Jennifer Lowis                  Robert Smeltzer

Robert Smith

Lowis & Gellen LLP is also proud to announce that we have 4 attorneys that were recognized and selected in 2015 by their peers as Emerging Lawyers.

Anne Brochmann             Bryan Larsen

Brian Orr                           Jamie Riccardi

L&G Wraps Up the Year with 3 Big Trial Victories

Pam Gellen and Bryan Larsen, with the help of Kevin Clancy and associates Paul Struebing and Curtiss Schreiber, got a defense verdict, after a nearly 4 week trial against Clifford Law Offices (Bradley Cosgrove, Richard Burke and Kim Halverson). The plaintiff asked the jury for over $20 milion. Pam and Bryan defended a pathologist who was alleged to have missed an abnormality on a Pap smear in 2002. The case had been pending for 10 years.

Mike Code and Simon Hill secured a defense verdict on behalf of an orthopedic surgeon and his practice group following claims by the 65-year-old plaintiff that the surgeon negligently performed two surgeries to treat the plaintiff’s infected hip prosthesis. After Mike and Simon successfully argued in pre-trial motions that many of the plaintiff’s claims and alleged damages should be barred, the plaintiff was forced to proceed on the sole claim that the surgeon failed to pursue chronic antibiotic suppression therapy instead of surgery and, therefore, the subsequent surgeries to treat the infection were unnecessary. The jury deliberated for less than 30 minutes before it returned a verdict in favor of the defendants.

Andrea Kott, Jim Bream and Patrick Viktora, with the assistance of the firm’s newest associate, Leighanne Root, successfully defended a case brought on behalf of a 66-year-old decedent who left a wife and six adult children. The decedent suffered respiratory and cardiac arrest when his temporary oxygen tank ran out of gas less than two hours following his discharge from the hospital. The Court permitted both a vicarious liability claim and an institutional negligence claim to go to the jury. The jury deliberated for under three hours after two and a half weeks of trial.

3BIGWINS