Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term that began today Monday, May 9, 2016, with oral arguments scheduled for Tuesday, May 10, 2016; Wednesday, May 11, 2016; Tuesday, May 17, 2016; and Thursday, May 19, 2016. The Court will be hearing arguments at Benedictine University in Lisle, Illinois on May 19, 2016. A total of 8 cases will be heard – 4 civil and 4 criminal. Here are the civil cases with the dates of oral argument:

Ronald Bayer v. Panduit Corporation, No. 119553—May 11

James Kakos v. Jerry Bauer, No. 120377—May 11

William Bremer v. The City of Rockford, Nos. 119889, 119912 (cons.)—May 17

Randall W. Moon v. Clarissa F. Rhode, No. 119572—May 19

Two of the civil cases which will be heard include: James Kakos v. Jerry Bauer, which involves the constitutionality of the statute providing for six-person juries, and Moon v. Rhode, which addresses whether the discovery rule applies to wrongful death claims based on medical malpractice. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website. 

CONSTITUTIONAL LAW – JURY DEMAND

No. 120377
Kakos v. Butler

This appeal concerns the constitutionality of P.A. 98-1132, which requires that all civil jury trials shall be tried by a jury comprised of six members, regardless of the amount in controversy.

In December of 2014, the General Assembly enacted P.A. 98-1132, which amended the statute governing jury demands. Before the amendment, the statue provided that in all civil jury cases seeking damages of $50,000 or less, the jury shall be comprised of 6 jurors, unless either party demands a jury of 12. The amendment changed the statute to require that all civil jury cases, regardless of the amount in controversy, shall be comprised of 6 jurors, with no option for either party to seek a 12-person jury.

Defendants filed a jury demand seeking a 12-person jury; however, the Clerk of the Circuit Court refused to accept the jury demand and payment. Defendants then challenged P.A. 98-1132 as unconstitutional on its face as being in direct conflict with article I, section 13 of the Illinois Constitution of 1970, which states: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Defendants argued that parties previously had the right to a 12-person jury.

The circuit court agreed, finding P.A. 98-1132 facially unconstitutional. It determined that article I, section 13 was ambiguous in its reference to the right “heretofore enjoyed” with respect to jury trials. It examined previous versions of the Illinois Constitution as well as the proceedings of the 1970 Constitutional Convention and concluded that the right to a 12-person jury has been “a continuous, unbroken right” for over 100 years. The court further noted that the Convention delegates considered mandating a 6-person jury and expressly rejected it. The court rejected Plaintiffs’ argument that the United States Constitution allows for 6-person juries, as the issue before the court is whether a statute is in conflict with a provision of the Illinois Constitution.

The circuit court further found P.A. 98-1132 unconstitutional as a violation of the separation of powers. It found that the judiciary alone has the power to regulate the conduct of trials and the statute conflicts with Illinois Supreme Court Rule 285, which permits a party to elect a 12-person jury. Finally, the court determined that based on research and other scholarship, allowing for a 12-person jury is good public policy.

Direct Appeal – Supreme Court Rule 302(a): 1/27/16

PROCEDURE – DISCOVERY RULE

No. 119572
Moon v. Rhode

The issue presented in this appeal is whether the discovery rule applies to wrongful death claims brought under the Wrongful Death Act and Survival Act when those claims are based on medical malpractice.

Plaintiff’s  decedent  developed  complications  post-surgery.    Two  CT  scans  were performed shortly before she died in May 2009. Plaintiff, a licensed attorney as well the decedent’s son, was appointed as executor of his mother’s estate.  Plaintiff requested his mother’s records which he received in March 2010.  The records were reviewed in April 2011, at which time Plaintiff received oral notification that there was negligent conduct in his mother’s care with respect to interpretation of the CT scans.  Plaintiff received the written certificate of medical negligence in May 2011.

Plaintiff filed suit against Defendants in March 2013, almost four years after the decedent’s death.  Defendants filed a motion to dismiss based on the statute of limitations, which the circuit court granted.   The Illinois Appellate Court affirmed, holding that the discovery rule did not apply to claims brought under the Wrongful Death and Survival Acts.  It further explained that under section 13-212(a) of the Code of Civil Procedure (the “Code”) (735 ILCS 5/13-212(a)), the statute of limitations begins to run upon knowledge of the death and not on knowledge of the negligent conduct.

In his petition for leave to appeal, Plaintiff argued that the appellate court erred in not applying the discovery rule to his Wrongful Death and Survival Act claims, where they are based on medical negligence to which the discovery rule applies.   Plaintiff argued that the appellate court’s  ruling  creates  an  artificial  distinction  between  personal  injury  actions  premised  on medical negligence that do not result in death and those that do.  Plaintiff also argued that the reasoning adopted by the appellate court is at odds with existing appellate precedent, all of which applies the discovery rule to wrongful death and survival claims.

Appellate Court Decision:   2015 IL App (3d) 130613, 34 N.E.3d 1052.   Schmidt, J., with McDade, J., concurring; Lytton, J., dissenting.

PLA Allowed:  09/30/15