Tuesday, May 29, 2007

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.


Anonymous,  11:46 AM  

Hancock was killed in Missouri, not Illinois as you wrote.

Yellow Dog Democrat 1:13 PM  

So, Ed, getting back to Senate Bill 1296, is its your position that the tow truck driver and the stranded motorist should appear on the jury verdict form, even if they are dismissed from the case? If it's your position that they weren't at fault, how does allowing the jury to apportion blame to them advance justice?

At the same time, if the facts at trial demonstrate that Shannon's bar over-served Hancock when he was clearly intoxicated, should they be excused from all responsibility simply because they have "deep pockets"? I don't think so.

By the same note, how do you figure that the trial lawyers "decide" who remains in a case? Last time I checked, it takes two to settle.

You guys at the ICJL spend alot of time defending so-called "deep pockets" defendants. To quote Spiderman 2, "With great power, comes great responsibility." Defendants with Deep Pockets should take care not to continue to serve bar patrons who are clearly drunk and then send them on their way, even - or especially - if they are high profile celebrities. My guess is that they decided to give Hancock whatever he wants because he is a celebrity, which brings money in the door. Now, they sow what they reap.

Yellow Dog Democrat 1:14 PM  

Make that "reap what they sow."

Skeeter 1:38 PM  

Reaping what they sow?

Did I read something wrong? Did somebody hold Hancock down, force alcohol down his throat, force drugs into him, and then force him to get behind the wheel? Hancock caused his own death. Nobody else did.

Do you honestly think that this should even be close?

A patron:
1. Drinks too much;
2. Gets into his car and apparently uses drugs on top of the alcohol;
3. Doesn't wear a seatbelt;
4. Talks on the phone; and
5. Plows into a stopped vehicle without ever hitting his brakes and somehow fault lies with anybody OTHER than Hancock?

This case will force the tow truck driver and the car driver to re-live the night in question, probably at least twice (deposition and trial). That is just cruel to those people who played no role whatsoever in causing the accident.

Plaintiffs' attorneys should be jumping up and down going after the people who filed the suit. It is an outrage.

I think Murnane's suggestion was that plaintiff could potentially settle out against the bar and go to trial against a poorly insured individual and a more highly insured tow truck company. You could then have a scenario where with the crying family members the jury finds against the tow truck company.
If everybody is on the form, the tow truck might get hit for 1%. Without those parties, that tow truck turns into 100%.

All for the death of a drunk guy who was on drugs, talking on the phone, not wearing a seat belt, and who never even hit the brakes.

Yellow Dog Democrat 11:16 AM  

Skeeter - Under Illinois law at least, bars are held partly responsible for knowingly over-serving a patron. Maybe you think we should change the law and bar owners should be given complete immunity, but that's the law now.

You are correct that there are a lot of important facts that need to be weighed by the jury in this case in apportioning blame. That's what juries are for. BTW, I don't believe that toxicology reports found that Hancock was stoned, although pot was found in his care.

Also, I'd point out that under Illinois law, if the jury finds that Hancock was 51% or more responsible for the accident, his family doesn't collect a penny from Mike Shannon's restaurant, even if they find that the restaurant was responsible for the other 49%. In a case involving the lost wages of a major league baseball player, that's millions of dollars in damages that the restaurant is off the hook for, and that's a pretty big loophole that so-called "deep pockets" defendants don't like to talk about.

Skeeter 12:43 PM  


That's not really correct.
What they are held liable for is if they overserve a person, and that person injures somebody else (example: In this case, the tow truck driver could have sued the bar). Here, the over-served damaged himself. If there is an Illinois case out there where a person was overserved and then successfully sued the bar, I am not aware of it. I would be shocked though, as it really would take away any version of personal responsibility.

Effectively, Hancock killed himself. It is a personal tragedy for Hancock and his family, but it is nobody else's fault.

Further, putting the tow truck driver, car owner, and emergency personnel through depositions and trial is really heartless. They had to live through it once, and for a plaintiff's attorney to make them go through it again on these facts is really repulsive. The family and the attorney should be absolutely ashamed of this suit, and the trial bar should be out there renouncing this suit. It makes some good plaintiff's lawyers look bad.

By the way -- in Illinois the jury would be advised that if they find the plaintiff 51%, he gets nothing. As a result, you see way too many 50% verdicts.

  © Blogger template The Professional Template by Ourblogtemplates.com 2008

Back to TOP