In a personal injury case, if the defendant destroys evidence, there are two types of claims: (1) Intentional spoilation of evidence, and (2) Negligent spoilation of evidence.

For the plaintiff to establish a cause of action for negligent spoilation of evidence, s/he has to show that s/he reasonably relied on the party to preserve potential evidence. The plaintiff had to establish a duty by the defendants to preserve evidence. For example, if police officers voluntarily assumed responsibility to protect the plaintiff’s prospects for recovery by civil litigation, or their conduct prevented the plaintiff from conducting the plaintiff’s own investigation. Another example, a chair manufacturer, could have a cause of action against a hospital for losing or throwing away a chair if the manufacturer established that the hospital had a duty to maintain or secure the chair.

In determining whether a duty exists, the most important consideration is foreseeability of harm to the plaintiff. Foreseeability is measured by whatever a reasonably thoughtful person would likely take account of in his conduct in the setting of modern life. For example, a janitor throws away an unmarked bag containing a broken bottle, which was placed on top of an attorney’s desk. The bottle was valuable evidence in a product liability action. The janitor may not owe the plaintiff a duty to preserve the evidence. Rather, it was the attorney who was negligent in not maintaining the evidence. The janitor acted reasonably when he removed the bottle, as he would other trash. If the bottle was labeled, and not left lying about, a reasonable janitor would not have destroyed the evidence, which he was normally entitled to assume was garbage.

Other factors in determining duty include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; and (5) the policy of preventing future harm.

Where spoilation of evidence enables the spoilator to profit from his own wrong, a duty to preserve evidence arises solely from foreseeability of the harm to the plaintiff. Undertaking to preserve evidence is not a prerequisite to liability for intentional spoilation of evidence. Intentional spoilation of evidence occurs when a defendant destroyed or lost evidence s/he knew was essential proof in a civil action. For example, the plaintiff is involved in an auto accident. The defendant agrees with the plaintiff’s attorney to maintain certain automotive parts (physical evidence), pending further investigation. Thereafter, the defendant destroys, loses or transfers the physical evidence, making it impossible for the plaintiff’s experts to pinpoint the cause of the failure of the automotive part.

The elements of intentional spoilation of evidence are analogized to intentional interference with prospective economic advantage. The elements include: (1) pending or probable litigation involving the plaintiff; (2) knowledge by the defendant of the existence or likelihood of the litigation; (3) intentional acts of spoilation, on the part of the defendant, designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused by the acts of defendant.

According to the collateral source rule, if an injured party receives compensation for injuries from a source independent of the tortfeasor, payment should not be deducted from which the plaintiff would otherwise collect from the tortfeasor.

The policy behind this rule is that a person who has paid insurance premiums to assure his medical care should receive the benefit of his investments. To encourage the purchase of insurance, the tortfeasor should not benefit from the victim’s investments. If the tortfeasor is permitted to mitigate damages with payments from a plaintiff’s insurance, the plaintiff would be in an inferior position to that of one who had not bought any insurance.

There is persuasive case law that the collateral source rule applies to insurance payments made in tort cases and other benefits which a plaintiff has paid for. Insurance is defined as a pooling of resources by individuals to provide a fund to pay losses due to certain risks.

A plaintiff’s attorney may analogize worker’s compensation to insurance payments in that worker’s compensation was deducted from the plaintiff’s paychecks. The plaintiff has paid for worker’s compensation benefits from deductions from paychecks. The paychecks would have been higher if the plaintiff did not have to pay for worker’s compensation. Further, worker’s compensation benefits are an independent source of a tortfeasor in that it is not paid by a party who is liable for the plaintiff’s injuries.

An argument of double recovery by a defendant is rebutted with the policy that the collateral source rule serves partially to compensate for attorneys’ contingent fees. Plaintiffs seldom receive the full compensations computed by juries.

Accident victims should not be naïve when a defendant’s money concerns override humanity. A plaintiff needs to be careful not to let a defendant know too early how much the plaintiff’s own insurance providers paid towards medical expenses and damages. With the information, the defendant might try to bargain down the settlement amount or damages award. Damages recoverable from a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for a loss by insurance effected by the injured party, and to the procurement of which the wrongdoer did not contribute.

The collateral source rule encourages citizens to purchase and maintain insurance for personal injuries. The tortfeaser should not garner the benefits of his victim’s providence. An injured party’s compensation from a source wholly independent of the defendant should not be deducted from damages otherwise collectible from the defendant.

The Illinois Supreme Court recently decided a case in which the plaintiffs had received medical services at two Illinois hospitals after a car accident. The hospitals filed a lien against the plaintiffs’ possible recovery. Medical providers commonly file liens in this manner when a doctor, hospital, or other medical services provider is not paid for the medical treatment that s/he/it has provided. In accident cases, the medical services provider will file a medical lien on any insurance settlement or award that the injured person may receive as a result of a personal injury case.

In this case, the plaintiffs settled with the defendants but then disputed the hospitals’ liens, arguing that under the “common fund doctrine,” the plaintiffs’ attorneys were entitled to one-third of the amount that the hospitals were attempting to recover. The common fund doctrine is a longstanding rule of common law which allows a court to order an allowance of attorney’s fees to one who, at his own expense wins, a suit which increases or creates a fund in which others share. The rule is based on the idea that the person who has taken the risks and costs of litigation should not pay the expenses alone, while others share in the benefits.

In the case above, the lower court upheld this principle and ordered that the plaintiff’s attorneys were entitled to one-third of the plaintiff’s recovery, including that to which the hospitals were entitled. The appellate court affirmed. Surprisingly, the Supreme Court reversed, reasoning that the hospitals’ claim against the plaintiffs existed, regardless of the plaintiffs’ personal injury litigation, or its outcome. It further explained that, the hospitals were not unjustly enriched by the plaintiffs’ efforts to recover because, “the hospital … had no opportunity to choose their own counsel or to negotiate a settlement on their own terms.”

The result of this litigation is that the common fund doctrine is not applicable to health-care liens, as once thought. In light of this ruling, the existence of any liens should be carefully considered when calculating and evaluating a potential personal injury settlement. In the event of a settlement or judgment on behalf of an injured plaintiff, a medical provider’s lien must be paid in full, without any deduction for attorney’s fees or the costs of the litigation. It is likely that there will be attempts to enact a law which would circumvent the holding of this case by seeking to amend the Health Care Services Lien Act.

By now, nearly everyone is aware of the risks of asbestos exposure, and certainly many workers exposed to asbestos in the course of their work have now been compensated. But because the illnesses associated with asbestos take many years to manifest themselves, courts will continue to deal with the question of damages for such injuries long after measures have been taken to limit workers’ exposure. Since asbestos is easily communicated to others, courts have recently begun to address the question of second-hand asbestos exposure. If you’re loved one was regularly exposed to asbestos in the past, is it possible you have also been exposed? And if so, should you also be entitled to compensation for that exposure from your loved one’s employer?

This question was recently addressed by the Illinois Appellate Court (5^th District) in Simpkins v. CSX Transportation, in which the plaintiff alleging injuries resulting from her husband’s (work-related) asbestos exposure. Specifically, she alleged that she developed cancer from the asbestos transported by her husband’s body and clothes. The lower court had dismissed her claim against one defendant on the grounds that, as a matter of law, an employer owes no duty of care to the families of its employees.

In reversing the lower court’s decision, the appellate court considered four factors in finding the existence of a duty to the worker’s family: (1) Was the risk of harm foreseeable? (2) Was the injury likely to occur? (3) What type of burden was it for the employer to protect its employee against this injury? (4)What consequences are there of imposing this duty? The appellate court reversed the lower court’s decision and ruled that the husband’s employer did have a duty of care toward its employee’s immediate family. This decision directly opposes that of an earlier Second District Appellate Court case, where it was held that an employer has no duty to protect when it has no direct relationship with the plaintiff.

Apparently, the Fifth District broadly interprets the term “duty.” In the court’s analysis, particular attention was paid to the first factor, foreseeability.  In the present case, the court found that the harm to the plaintiff/wife was reasonably foreseeable because the employer should have anticipated that she would be exposed to the asbestos, and should have known the risks associated with second-hand asbestos exposure.

Even though the court limited its ruling in this case to immediate family members, it expressly left open the question of whether employers could be found to owe a duty of protection to anyone who regularly comes into contact with employees exposed to asbestos-containing products. If you believe you have suffered injury from second-hand asbestos exposure, from a family member, or from anyone else with whom you’ve had regular contact, be sure to consult with an attorney to fully understand the implications of this split on your potential claim.

In a personal injury case, discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Admissibility at trial is not a prerequisite. Public policy favors discovery. Any doubt is generally resolved in favor of permitting discovery, especially when the issues in the case are not clearly established.

The fact that the party seeking information does not know precisely what s/he seeks, but is attempting to obtain all possible information for the purposes of the case (i.e. on a “fishing expedition”), is no basis for holding, per se, that a discovery request is improper. Discovery of all relevant material during the time of preparation is the aim. Discovery intends that each party shall divulge the information in the party’s possession. Though, the method of “fishing” may be improper (i.e placing the burden and cost of supplying information equally available to both solely upon the adversary).

One limitation on the scope of permissible discovery is that the information sought be not privileged.

Where any of the following apply, information is absolutely protected from disclosure in a personal injury action. The court cannot weigh or balance the privilege against the need for the information sought.

• Self-incrimination
• Attorney-client
• Spousal communications
• Physician-patient
• Psychotherapist-patient
• Educational psychologist-patient
• Clergyman-penitent
• Sexual assault victim and counselor
• Official records

The following information receives only qualified protection from pretrial discovery. Disclosure may be compelled if the court finds the interest of justice in obtaining the information outweighs the interests sought to be protected.

• News reporter’s sources
• Official information
• Police personnel files
• Trade secrets
• Attorney work product

As to objections made during a deposition, which is a witness testimony outside of court, all objections made are to be recorded by the deposition reporter. However, an objection does not excuse the deponent from the duty to answer, unless the objecting party demands that the deposition be suspended to permit a motion for protection. This is why the attorney who defends the deponent usually may not do much except take notes. When there is a protective order motion, the deponent answers the question, and the testimony is received, subject to the objection. If the testimony is offered at trial, the court will rule on the merits of the objection.

Although not prohibited by statute or case law, an attorney who instructs a deponent not to answer a question may violate standards of professionalism. The federal rules prohibit instructing a witness not to answer except where necessary to preserve a privilege.

A medical malpractice lawsuit was recently filed in southern Illinois by a woman who claims that her doctor performed an unnecessary and costly surgery, which resulted in scarring and disfigurement. The doctor-defendant allegedly misdiagnosed the plaintiff as having one type of abscess (batholin gland), when in fact she suffered from a different type of abscess (vulva abscess). At the doctor-defendant’s recommendation, she underwent surgery to remove what was thought to correct the abscess which she did not in fact have. Not only was this surgery unnecessary, it failed to correct the abscess from which she did suffer, which continued unaddressed.

Moreover, the surgery left the plaintiff substantially disfigured. The term disfigurement implies the loss of a limb, burns, or scars. The plaintiff’s disfigurement, which was only a result of the surgery, not the condition itself, led to a multitude of damages, such as increased medical costs, pain and suffering, and other damages.