Illinois Injury Lawyer Blog

Last week, the mother of a non-verbal 7 year old boy with autism made public a sickening incident that happened while her son was in his first grade class at Thomas A. Hendricks Elementary Community Academy on Chicago’s south side. Holley Cornwell-Vaca received a call from the school’s principal that a substitute teacher’s aide had hit her son, Paulie, after the boy kicked the aide, but the principal wouldn’t say exactly when or where the incident took place. She was told that two aides were suspended because of the altercation, but she says she wasn’t told by the principal, but instead by the media. Ms. Cornwell-Vaca said the principal would only tell her that the incident had transpired and that it was being investigated. She told WGN that she would not allow her son to return to the school.

Teacher’s aides, also called paraprofessionals, can have a wide range of duties that include working individually with students who require more one-on-one support and remediation and supporting the teacher in all aspects of classroom teaching, student discipline, class preparation and even grading. Under no circumstances are teachers, classroom aides, or other paraprofessionals allowed to use physical abuse as a means of discipline or restraint.  According to the Illinois State Board of Education, paraprofessionals are required to be at least 19 years old and have either an Associate’s Degree, 60 semester hours of coursework (unspecified), a GED plus a score of 460 or higher on the ETS ParaPro test, or a GED with a score of 4 on both the ACT Work Keys Applied Mathematics test and the ACT Reading for Information test. They must also work under the supervision of a certified teacher. While many work with students with special needs, they are not certified as special needs educators, nor are they required to undergo specialized training to handle and respond to the specific needs of students with certain cognitive, behavioral, social or emotional conditions and diagnoses.

If you have a loved one that you suspect has been physically mistreated while a student at any educational institution, you should take action. Our schools are meant to be a safe environment where teaching and learning are conducted with mutual respect between students, teachers and other staff. Parents and guardians are an integral part of ensuring that our children’s education is a positive experience, and information should never be withheld by teachers and administrators, especially when a child is unable to personally communicate that something has happened.

A St. Louis-based class action lawsuit against Johnson & Johnson over claims their talc powders (officially called Johnson’s Baby Powder and Shower to Shower) cause ovarian cancer has continuously revealed evidence that the company has been aware for years of the dangers of using the product. Late last month, a Johnson & Johnson training memo become public that revealed that the company knew that asbestos was present in their talc and told the medical community and employees that asbestos “has never been found and it never will.” This is a striking revelation, considering another document last month contained a 1974 recommendation from the Director of Research and Development at a Johnson & Johnson talc mine in Vermont that the company consider using citric acid to eliminate or lessen the presence of asbestos in the talc mined from the site. In the memo, the employee strongly recommended the use of citric acid  “to provide protection against what are currently considered to be materials presenting a severe health hazard and are potentially present in all talc ores in use at this time.” Both documents were presented during an April deposition of Johnson & Johnson’s Chief Medical Officer, Joanne Waldstreicher.

A 1973 Johnson & Johnson report also said that they were working with federal officials at their Virginia mine to ensure that their talc was asbestos-free, because samples revealed trace amounts of asbestos fibers.

As part of the lawsuit, Johnson & Johnson has submitted records of asbestos testing beginning in 1972. According to those records, no asbestos was ever found in their baby powder and a spokesperson says that their products have been tested by the FDA and independent researchers frequently over the years.

It’s a misperception that just won’t go away: Today’s court system is bogged down by frivolous civil lawsuits. The truth is that more than 60% of lawsuits today are businesses suing other businesses or civilians and that civil lawsuits in Illinois fell 43% between 2010-2015. Civil lawsuits are those brought by an individual against another individual or business. This means the number of Americans suing anyone for being wronged is falling dramatically.

Exaggerations and Outright Lies

If you listen to the propaganda machine out there, you’d hear that civil lawsuits are at fault for raising our insurance premiums, driving doctors out of of the profession, and preventing our country from coming up with a reasonably-priced national insurance program that benefits most. You’d likely also hear that civilians and workers are costing businesses millions each year for injury and workers’ comp lawsuits, and that Americans in general have gone lawsuit crazy.

Court proceedings in an Australian class action lawsuit against Johnson & Johnson and its subsidiary, Ethicon, have revealed that the company tried to squash a report that would’ve revealed more testing was needed to ensure the efficacy and safety of its pelvic mesh devices. The report also stated that Ethicon pelvic mesh should not be used in patients until a randomized, controlled study was conducted. Pelvic mesh is used to support parts of the female anatomy that can shift from pregnancy, childbirth, or other conditions and requires implantation by a skilled surgeon. Members of the class action lawsuit have suffered injuries including intense pain, reduced sex lives, and loss of livelihood.

An attorney for the women has said that Ethicon received the report by French health authorities in 2007, two years after the devices were already in use throughout Australia.  Despite the report, the company put forth a marketing campaign that focused on the low price point and ease of implantation, while also going to great lengths to cover up the report from becoming public. Attorneys for the women have argued that implantation of pelvic mesh requires an advanced surgical technique, well beyond the skill level of a newer or inexperienced surgeon.

Earlier this month, the court heard minutes from an Ethicon meeting in which executives said the release of the French report “could have a major impact on our business if made public” and that efforts should be made to prevent it from becoming public. Court proceedings also discussed Ethicon’s involvement in a 2011 New England Journal of Medicine study and article touting the benefits and safety of their pelvic mesh devices. In 2013, the journal had to print an apology to its readers for misleading them on Ethicon’s involvement in the study and the article. Ethicon had essentially created the study, including the development of the study protocol, and had paid the authors of the article for their time. The company was also able to review the article draft before it was submitted and made numerous and significant changes.

Cedric Kyle, more commonly known as Cedric the Entertainer, is suing Southern California Gas Company (SoCal) for a leak in Aliso Canyon that has caused a wide range of physical ailments for him and his family. The lawsuit contends that Cedric the Entertainer and his family have suffered from unexplained rashes, vertigo, bloody noses and various other ailments. The lawsuit also blames the leak for significantly lowering the property value on the comedian’s home.

The Aliso Canyon methane gas leak occurred from October 2015 to February 2016 and the lawsuit claims that officials knew the area was not being run in compliance with regulations and continued to pump natural gas into wells that were not structurally sound. Records have shown that SoCal employees were aware that gas was leaking for over 24 hours before they called the fire department. The lawsuit specifically notes that the company has known since 1979 that a safety shut off valve was malfunctioning and chose not to repair it.

Experts have described the leak as the most environmentally destructive natural gas leak in U.S. history, with Erin Brockovich comparing it to the 2010 BP oil spill. “I’ve really never seen anything like this. I think the magnitude is enormous. Its like a volcano, and the gas is like the lava that can’t be shut off.”

The Center for Justice and Democracy at New York Law School shared a strongly worded letter to House Speaker Paul Ryan and House Minority Leader Nancy Pelosi speaking out against H.R. 1215. The letter, written on behalf of 80 major public interest organizations, highlights the damages that could result from passing H.R. 1215, the so-called Protecting Access to Care Act. Among the most notable passages is this:

“Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this problem. Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do.”

After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle an injury case will be more challenging and that financial compensation for injuries that are hard to quantify (such as pain and suffering) cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday.