Josh Hancock and Illinois Senate Bill 1296

by Ed Murnane

There was a convergence of news stories last week - extending into this week - that has to make reasonable and honest people wonder and speculate. That should include Illinois legislators.

The two stories intertwine - not perfectly - but enough to prompt comparison, or at least analysis.

One is the oft-heard (in these quarters) description of Illinois Senate Bill 1296 that allows plaintiffs (and their attorneys) in personal injury cases to go after the defendant with the most resources, rather than the defendant with the most responsibility.

If the defendant with most responsibility, but least resources, settles before trial, he/she is out of the equation when a jury assigns fault and compensation. The plaintiffs' attorneys -- the trial lawyers -- decide who will be "remaining" in the case when it goes to trial as the proposed law states (from the synopsis):

"Provides that the apportionment of fault under the joint liability Section only applies to the parties still remaining in the case at the time that a final determination is made by the trier of fact and does not apply to the defendants or third party defendants that have been dismissed for any reason, including settlement.

That verbiage is from the Illinois General Assembly description of SB 1296. You can find that description here, on the Illinois General Assembly web site.

We won't get into a lengthy description of SB 1296 -- we've written a lot about it but you should read this commentary by the president of the Illinois Association of Defense Counsel, Steve Puiszis, in response to an advertisement by the Illinois Trial Lawyers Association, the drafters and proponents of SB 1296:

"Even more disturbing is that Senate Bill 1296 allows the truth-seeking process in a courtroom to be manipulated by not allowing the jury to consider the fault of the drunken driver simply because he settled with the injured party.

"The fairness of our system of justice is called into question when one party can preclude another from obtaining a fair apportionment of fault between all parties who may have been involved in an accident. Senate Bill 1296 will actually require responsible citizens, businesses and local units of government in Illinois to foot the bill for damages caused by those persons who have no insurance or assets. That is why groups like the Illinois Chamber of Commerce have called it one of the most onerous bills considered by the General Assembly this session.

"Senate Bill 1296 is bad public policy and should not be passed into law."

Puiszis refers to a "drunken driver," using an example of the way the trial lawyers' proposed law would apply.

In fact, the "drunken driver" has been used on both sides of the argument, and that's where the convergence occurs.

This was the headline in the St. Louis Post-Dispatch last Friday:

Hancock's Family Sues Shannon's, Others

The story referred to St. Louis Cardinal pitcher Josh Hancock who died in an automobile accident characterized by authorities as a drunk driving incident. Hancock had a blood alcohol content of 0.157, almost twice the legal limit.

Any sudden, unexpected death is tragic and it becomes even more so when it affects so many people, the Cardinal fans, for example, who become members of the family ... members of the "Cardinal Nation."

But we wonder if Josh Hancock's grieving father in Mississippi really intended to blame Justin Tolar of Collinsville, Illinois, for a share in his son's death. Tolar's car had broken down and was the reason a tow truck was present.

Or did he really think that Jacob E. Hargrove, the tow truck driver who stopped to help Tolar, had something to do with his son's death?

Or is it more likely that Josh Hancock's father, Dean Hancock of Tupelo, Mississippi, was encouraged by the St. Louis lawfirm of Newman Bronson & Wallis, who filed the suit in the Twenty-Second Judicial Circuit, City of St. Louis, Missouri Circuit Court?

Newman Bronson & Wallis is a prominent St. Louis personal injury trial lawyer firm. Their website introduces them this way:

"We are experienced trial lawyers who are committed to the aggressive and passionate representation of injured victims and their families. We believe that if you or a family member have been injured by the negligence, wrongful act, or fault of someone else, you and your family are entitled to experienced and high quality legal representation."

News media around the U.S. -- and internationally, too -- have been harshly critical of Josh Hancock's family and father for the lawsuit. I had intended to include a few negative -- some outwardly hostile -- reactions but there have been so many that it would take too long to select the best.

But I have a feeling that Josh Hancock's father and family are not to blame.

I'd guess that the decision to sue Mike Shannon's restaurant, the manager of Shannon's restaurant, the driver of the stalled car, the tow truck operator, and whomever else came from the personal injury trial lawyers who wanted to make sure that ever possible defendant was listed before the suit was filed.

According to the lawsuit, Newman Bronson & Wallis is partnered with a Mississippi firm, Clayton O'Donnell Walsh & Davis, also a firm that does personal injury work in a state that has been more hostile to fairness than Missouri, perhaps on a level plain with Illinois.

It's not hard to imagine the Mississippi firm and the Missouri firm (we haven't taken the time (but might) to see if they've worked together before) comparing notes, figuring out WHOM can be sued so that when settlements are finished, WHO has the most money to pay the plaintiff and, of course, the plaintiff's attorneys.

Here are a few questions that come to mind, and should be asked:

Is this lawsuit going to bring Hancock back? Or is it just about the money?

Would they have sued the driver of the broken down car if he was killed in the accident caused by Josh Hancock?

Are they going to sue the person Hancock was talking to on the cellphone at the time of the accident - or is that next?

Are the going to sue the Chicago Cubs players who may have caused him mental anguish in the game Saturday?

Are they going to sue the Cardinals' players who probably knew about his drinking habits but apparently did nothing, or not enough, to help him?

Trial lawyers in Illinois are certain to be watching this case. Some of them need only look across the Mississippi River.

Legislators in Illinois ought to be looking at this case too -- not as one that will have an impact on Illinois law, but as one that reveals the extent to which the trial lawyers in all states -- including Illinois -- will go to search out sources of settlement/award money.

The "drunk driver" scenario that's been portrayed in connection with SB 1296 can happen -- it does happen. The Hancock case -- the accident actually took place in Illinois -- is an example of how the personal injury trial lawyers in Missouri, in Mississippi, and in Illinois, will work to manipulate the system.

Here's The Hancock Lawsuit.

Here's the Steve Puiszis Commentary.

Here's the St. Louis Post Dispatch Story On Hancock Suit.

Cross-posted from the Illinois Justice Blog.