Forklift Equipment Product Liability Complaint 1

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Amended Complaint and Jury Demand

Carlson, Wendler & Sanderson, Jon G. Carlson, IL Bar #00392812, 90 Eawardsville Professional Park, P.O. Box 527, Edwardsville, IL 62025, 618/656-0066, Attorney for Plaintiff.

Law Offices of Charles R. Abele, Charles R. Abele, IL Bar #00002100, 1015 Locust, Suite 1024, St. Louis, MO 63101-1323, 314/241-3123, Attorney for Plaintiff.

Pitts, Dugan & Diaz, P.C., Theodore R. Diaz, IL Bar #06181960, 200 N. Wood River Drive, Wood River, IL 62095.

Plaintiff demands trial by Jury of twelve.

Count I
(Strict Products Liability - Taylor and Allied)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE, and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendant Taylor Machine Works, Inc. and Allied Industrial Equipment Corporation states as follows:

1. Plaintiff Vernon Best, (“Vernon Best”) is a resident of Staunton, Macoupin County, State of Illinois.

2. Defendant Taylor Machine Works, Inc., (“Taylor”) is a corporation organized and existing under the laws of the State of Mississippi, with its principle place of business located in the City of Louisville, Mississippi, while doing business in the State of Illinois.

3. Defendant Allied Industrial Equipment Corporation, (“Allied”) is a corporation organized and existing under the laws of the State of Missouri, with its principle place of business located in the City of St. Louis, and doing business in the State of Illinois.

4. On or about July 24, 1995, Vernon Best was performing his normal work duties as a forklift truck operator for his employer Laclede Steel Company, (“Laclede”) in the City of Alton, Madison County, Illinois.

5. At said time and place, Vernon Best was operating an industrial forklift truck Model No. TY-520M designed, built, manufactured, and/or modified by Taylor and/or sold, distributed, and/or modified by Allied, (the “Taylor forklift”) which eventually came into the possession of Laclede.

6. That at all times relevant herein, the Taylor forklift was in substantially the same condition as when it left the control of Taylor and Allied.

7. Taylor and Allied placed the Taylor forklift into the stream of commerce as part of their regular business activity in the State of Illinois.

8. As a part of his duties for Laclede, Vernon Best was required to move a number of heavy slabs of very hot steel castings from one location on Laclede property to another.

9. The design, manufacture, and/or modification, sale, and distribution of the Taylor forklift made it defective and not reasonably safe in one or more of the following respects:

a) The design and/or construction of the support assembly for the mast of the machinery was weak, insubstantial and defective causing the mast to fail and the load to drop.

b) The location of the hydraulic fitting at the bottom of the lift cylinder was unreasonably dangerous and the design of this machine thereby defective, because it allowed the collapsing mast assembly to shear this fitting from the cylinder thereby causing a rapid release of high pressure hydraulic fluid which subsequently ignited.

c) The design, and/or construction of this machine, together with the manual of instructions supplied with it allowed and suggested the use of hydraulic fluid that was too flammable and therefore unreasonably dangerous for use in the environment in which this machine was known to operate.

10. These defects existed at the time the Taylor forklift left the Taylor manufacturing facility. With regard to the distributor Allied they existed at the time the Taylor forklift left its facility for distribution and sale to Laclede.

11. While operating the Taylor forklift and moving hot heavy slabs of steel, the steel parts and the weldments of the mast and support assembly of the Taylor machine fractured causing the mast to fall shearing off an hydraulic fitting causing flammable hydraulic fluid to ignite resulting in an explosion of flame.

12. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the defects described in Paragraph 9, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

WHEREFORE, Plaintiff Vernon Best prays for judgment against the Defendants Taylor and Allied for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE.

COUNT II
(Negligence - Defendants Taylor and Allied)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE, and PITTS, DUGAN & DIAZ and in support of his cause of action against the Defendants Taylor and Allied states as follows:

1. Plaintiff Vernon Best realleges and incorporates by reference each and every allegation contained in paragraphs 1 - 8 and 10-11 contained in Count I of this Petition as if fully pleaded herein.

2. Taylor and Allied committed one or more of the following negligent acts and/or omissions in the design, manufacture, and /or modification of said Taylor forklift.

a) Negligently and carelessly designed and/or constructed the support assembly for the mast of the machinery so that it was weak, insubstantial and defective causing the mast to fail and the load to drop.

b) Negligently and carelessly located the hydraulic fitting at the bottom of the lift cylinder so that it was unreasonably dangerous and negligently designed this machine so that it allowed the collapsing mast assembly to shear this fitting from the cylinder causing a rapid release of high pressure hydraulic fluid which subsequently ignited.

c) Negligently and carelessly designed and/or constructed this machine so that it allowed and permitted the use of hydraulic fluid that was too flammable and therefore unsafe for use in the environment in which this machine was known to operate.

d) Negligently and carelessly failed to warn the Plaintiff of the dangerous conditions then and there existing when the Defendants knew or in the exercise of ordinary care should have known that said warning was necessary to prevent injury to the Plaintiff.

e) Negligently and carelessly instructed the Plaintiff and others that the use of the hydraulic fluid mentioned in the Defendants manual instructions and negligently allowed, permitted, and suggested the use of hydraulic fluid that was too flammable and therefore unsafe and inappropriate for use in the environment in which this machine was known to operate.

3. These defects existed at the time the Taylor forklift left the Taylor manufacturing facility. With regard to the distributor Allied they existed at the time the Taylor forklift left its facility for distribution and sale to Laclede.

4. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the negligent act, and each of them, described in Paragraph 2, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

WHEREFORE, Plaintiff Vernon Best prays for judgment against the Defendants for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE.

COUNT III
(Implied Warranty - Defendant Taylor and Allied)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE, and PITTS, DUGAN & DIAZ and in support of his cause of action against the Defendants Taylor and Allied states as follows:

1. Plaintiff Vernon Best realleges and incorporates by reference each and every allegation contained in paragraphs 1- 8 and 10-11 contained in Count I of this Petition as if fully pleaded herein.

2. That at all times relevant hereto, Taylor and Allied, pursuant to 810 ILCS 5/2-314, impliedly warranted that the Taylor forklift was merchantable.

3. That in breach of the warranty, Taylor and Allied placed into the stream of commerce a Taylor forklift that was unmerchantable in the following manners:

a) The design and/or construction of the support assembly for the mast of the machinery was weak, insubstantial and defective causing the mast to fail and the load to drop.

b) The location of the hydraulic fitting at the bottom of the lift cylinder was unreasonably dangerous and the design of this machine thereby defective, because it allowed the collapsing mast assembly to shear this fitting from the cylinder thereby causing a rapid release of high pressure hydraulic fluid which subsequently ignited.

c) The design, and/or construction of this machine, together with the manual of instructions supplied with it allowed and suggested the use of hydraulic fluid that was too flammable and therefore unreasonably dangerous for use in the environment in which this machine was known to operate.

4. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the breaches of the warranties of merchantability described in Paragraph 3, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

5. That immediately following the breach, notice was given to Taylor and Allied and/or their agents of the breach of said warranty.

WHEREFORE, the Plaintiff Vernon Best prays for judgment against the Defendants Taylor and Allied for a sum in excess of jurisdictional limits and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE ON ALL COUNTS.

COUNT IV
(BREACH OF WARRANTY FOR A PARTICULAR PURPOSE - 810 ILCS 5/2-315 - Taylor and Allied)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendants Taylor and Allied and states as follows:

1. Plaintiff Vernon Best realleges and incorporates by reference each and every allegation contained in paragraphs 1 - 8 and 10-11 contained in Count 1 of this Petition as if fully pleaded herein

2. That at all times relevant herein, Taylor and Allied had reason to know the particular purpose for which the Taylor forklift was to be put and that Laclede relied on Taylor and Allied's skill and/or judgment to select or furnish a Taylor forklift which was suitable for this purpose.

3. That pursuant to 810 ILCS 5/2-315, the Taylor and Allied impliedly warranted that the Taylor forklift was fit for its particular purpose, to wit: to be used to transport and carry heavy slabs of very hot steel castings from one location on the Laclede property to another and that it was suitable for that purpose under the circumstances then and there existing.

4. That in breach of the aforesaid implied warranty, Taylor and Allied placed into the stream of commerce a Taylor forklift that was not fit for its particular purpose in the following manners:

a) The design and/or construction of the support assembly for the mast of the machinery was weak, insubstantial and defective causing the mast to fail and the load to drop.

b) The location of the hydraulic fitting at the bottom of the lift cylinder was unreasonably dangerous and the design of this machine thereby defective, because it allowed the collapsing mast assembly to shear this fitting from the cylinder thereby causing a rapid release of high pressure hydraulic fluid which subsequently ignited.

c) The design, and/or construction of this machine, together with the manual of instructions supplied with it allowed and suggested the use of hydraulic fluid that was too flammable and therefore unreasonably dangerous for use in the environment in which this machine was known to operate.

5. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

6. As a direct and proximate result of the breaches of warranty for the purposes described in Paragraph 4, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

6. That immediately following the aforesaid breach, notice was given to Taylor and Allied and/or their agents of the breach of said warranty.

WHEREFORE, the Plaintiff Vernon Best prays for judgment against the Defendants Taylor and Allied for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE ON ALL COSTS.

COUNT V
(Express Warranty - Taylor and Allied)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendants Taylor and Allied states as follows:

1. Vernon Best realleges and incorporates by reference each and every allegation contained in paragraphs 1 - 8 and 10-11 contained in Count 1 of this Petition as if fully pleaded herein.

2. That as part of their marketing process, Taylor and Allied, through their literature and through their agents, represented to Vernon Best and his agents that the Taylor forklift was safe. For example, Taylor and Allied and their agents represented the following in its literature, to-wit:

a) That the suggested hydraulic fluids listed in the operation specifications for the vehicle to-wit: Taylor Model No. TY-520M by Defendant Taylor were of a flammable nature when said hydraulic fluids used in a high temperature environment and said fluids suggested for use by the manufacturer and the distributor thereof had a potential for fire and explosion which cause harm beyond that which would be objectively contemplated by the ordinary user.

3. These hydraulic fluids were installed in the vehicle at the factory and similar hydraulic fluids were utilized at the time of this accident when there were high temperature, non-flammable type hydraulic fluids available as an alternative which were feasible and which should have been utilized in this environment and were not.

4. The representations to Vernon Best and/or Laclede by Taylor and Allied were a material factor in Laclede's purchase and/or lease of the Taylor forklift and in Vernon Best's use of it.

5. That following said purchase and/or lease, Vernon Best used the Taylor forklift for its intended and reasonable foreseeable uses.

6. That despite Taylor and Allied's representations the Taylor forklift did not meet said representations, to-wit: it was not safe for use in a high temperature environment because of its potential for fire and explosion and the representations of Taylor and Allied that the Taylor forklift was safe for use with the hydraulic fluids that were suggested and used by Vernon Best and/or Laclede did not meet said representations of safety.

7. Vernon Best, sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the breaches of these express warranties described in Paragraph 2, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

8. That immediately following the breach, Vernon Best gave notice to Taylor and Allied and/or their agents of the breach of said warranty.

WHEREFORE, the Plaintiff Vernon Best prays for judgment against the Defendants Taylor and Allied for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE ON ALL COUNTS.

Count VI
(Strict Products Liability - Helms)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendant Lee Helms, Inc. states:

1. Plaintiff Vernon Best (“Vernon Best”) is a resident of the State of Illinois.

2. Defendant Lee Helms, Inc. (“Helms”) is a corporation organized and existing under the laws of the State of Illinois, with its principle place of business located in the City of Belleville and doing business in the State of Illinois.

3. On or about July 24, 1995, Vernon Best was performing his normal work duties as a forklift truck operator for his employer Laclede Steel Company, (Laclede) in the City of Alton, Madison County, Illinois.

4. At said time and place, Vernon Best was operating an industrial forklift truck, Model Number TY-580M, in which hydraulic fluid designated Super Select ATFD/M (“hydraulic fluid”), manufactured, sold and/or distributed by Helms was being used.

5. At all times relevant herein, the hydraulic fluid was in substantially the same condition as when it left the control of Helms.

6. Helms placed the hydraulic fluid into the stream of commerce as part of its regular business activity in the State of Illinois.

7. As part of his duties for Laclede, Vernon Best was required to move a number of heavy slabs of very hot steel castings from one location on Laclede property to another.

8. The hydraulic fluid was defective and not reasonably safe in that:

a) it had a flash point and an auto-ignition temperature that was flammable and inappropriate for use in the environment in which this machine operated and was known to operate; and

b) it was unsafe for use in this machine in its foreseeable environment because it had a potential for fire and explosion causing harm beyond that which would be objectively contemplated by the ordinary user.

9. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the defects described in Paragraph 8, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

WHEREFORE, Plaintiff Vernon Best prays for judgment against Defendant Helms for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PAYS FOR TRIAL BY JURY OF TWELVE.

COUNT VII
(Negligence - Defendant Helms)

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendant Helms, states as follows:

1. Vernon Best realleges and incorporates by reference each and every allegation contained in paragraphs 1 - 7 contained in Count VI of this Petition as if fully pleaded herein.

2. Helms committed one or more of the following negligent acts and/or omissions in the sale of the hydraulic fluid.

a) Negligently and carelessly manufactured, modified, sold and/or distributed the hydraulic fluid Helms knew or should have known had a flash point and an autoignition temperature that was flammable and inappropriate for use in the environment in which this machine operated and was known to operate; and

b) Negligently and carelessly provided hydraulic fluid that was unsafe for use in this machine in its foreseeable environment because it had a potential for fire and explosion causing harm beyond that which would be objectively contemplated by the ordinary user.

3. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the negligence described in Paragraph 2 of Count I, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

WHEREFORE, Plaintiff Vernon Best prays for judgment against the Defendant Helms for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE.

COUNT VIII
(Implied Warranty - Defendant Helms)

NOW COMES the Plaintiff Vernon Best, by and through his attorneys, CARLSON, WENDLER & SANDERSON, THE LAW OFFICES OF CHARLES R. ABELE, and PITTS, DUGAN & DIAZ, and in support of his cause of action against the Defendant Helms states as follows:

1. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 - 7 contained in Count VI of this Petition as if fully pleaded herein.

2. At all times relevant hereto, Helms, pursuant to 810 ILCS 5/2-314, impliedly warranted that the hydraulic fluid was merchantable.

3. That in breach of the aforesaid warranty, Helms placed into the stream of commerce hydraulic fluid that was unmerchantable in the following manners:

a) It was defective and not reasonably safe because it had a flash point and an auto-ignition temperature that was flammable and inappropriate for use in the environment in which this machine operated and was known to operate; and

b) it was unsafe for use in this machine in its foreseeable environment because it had a potential for fire and explosion causing harm beyond that which would be objectively contemplated by the ordinary user.

4. Vernon Best sustained severe and permanent injury while attempting to perform his normal work activities in an intended and foreseeable fashion, to-wit:

As a direct and proximate result of the implied warranties of merchantability described in Paragraph 2, Vernon Best was engulfed in a fireball and had to jump from the cab of the Taylor forklift onto the ground thereby sustaining second and third burns over approximately 50% of his body including his face, upper torso, and both arms and hands resulting in serious scarring of a permanent nature with resulting skin grafts and other attempts at treatment of his burns. In addition Vernon Best sustained bilateral comminuted fractures of both heels with operative reduction and internal fixation in addition to other serious and severe injuries.

Vernon Best has suffered and will continue to suffer grievous pain and anguish; his injuries are disfiguring and permanent in nature; he has been required to expend large sums of money in excess of Three Hundred Thousand Dollars ($300,000) to date in order to obtain medical treatment for his injuries and will be required to expend additional sums in the future; he has sustained substantial wage loss and has been damaged in his capacity to earn wages in the future; his condition is such that he will be forced to expend money for vocational rehabilitation and/or convalescent care.

WHEREFORE, Plaintiff Vernon Best prays for judgment against the Defendant for a sum in excess of jurisdictional limits of Fifteen Thousand Dollars ($15,000) and PLAINTIFF PRAYS FOR TRIAL BY JURY OF TWELVE ON ALL COUNTS.

COUNT IX
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF VARIOUS DEFENDANTS WITH REGARD TO SECTIONS 2-1003 , 8-802 , 8-2001 , AND 8-2003 OF THE ILLINOIS CODE OF CIVIL PROCEDURE

NOW COMES the Plaintiff, Vernon Best, by and through his attorneys, and complaining of the Defendants Taylor, Allied, and Helms, and each of them, alleges as follows:

1. The Plaintiff repeats, realleges and incorporates by reference Counts I and VIII as if fully set forth herein.

2. That the circumstances surrounding the Plaintiff's injuries give rise to a cognizable cause of action against the Defendants Taylor, Helms, and Allied, and each of them, under the common law of Illinois.

Sections 2-1003 & 8-802 Waiver of Privilege & Ex Parte Communications

3. That 735 ILCS 5/2-1003 provides that the plaintiff is a personal injury suit is deemed to have waived any privilege between that plaintiff and each health care provider who has furnished care to him at any time for any illness, injury, malady or condition. Similarly, Section 8-802 provides that filing a personal injury or wrongful death suit will constitute waiver of the physician-patient privilege and that health care providers are permitted to disclose confidential information regarding a patient when the patient brings an action on which his physical or mental condition is an issue. Section 2-1003 and 8-802 leave the courts with no discretion whatsoever--a court must either issue an order authorizing the release of all requested records and or sanction ex parte communications or dismiss the Plaintiff's case pursuant to 735 ILCS 5/2-619 (a)(9).

4. That Section 2-1003 and 8-802 cause the Plaintiff an immediate impending injury. Merely by filing suit, the Plaintiff has already been deemed to have completely and irrevocably waived any privilege between himself and any healthcare provider who has furnished care to the Plaintiff irrespective of any relevance to the litigation.

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