Forklift Equipment Product Liability Complaint - Part 2

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5. That the Plaintiff has received other medical care and treatment from other healthcare providers throughout his life that are totally unrelated to this cause of action, and thus, Section 2-1003 and 8-802 have already jeopardized his right to privacy.

6. That because of the serious nature and extent of the Plaintiff's multiple injuries, it is likely that the Defendants will proffer an authorization pursuant to these sections. The Plaintiff suffers impending injury insofar as such authorizations could be proffered at any time. Even in the unlikely event that an authorization is not proffered by at least one of the Defendants, the language of Section 2-1003 makes is abundantly clear that the Plaintiff's privilege has been already waived since the time that he filed his lawsuit.

7. That Sections 2-1003 and 8-802 will deter many other injured persons with meritorious claims from even filing suit, for fear that private, personal information will be disclosed to third parties.

8. That, in the State of Illinois, a strong public policy exists against ex parte communications between defense counsel and the Plaintiff's treating healthcare provider. This policy is premised on the Plaintiff's right to privacy and the confidential fiduciary relationship between healthcare providers and the Plaintiff.

9. That Sections 2-1003 and 8-802 of Public Act 89-7 give the defense the right to participate in ex parte conferences with Plaintiffs treating healthcare providers, as well as access to all of the Plaintiffs medical information, regardless of relevance. These provisions allow the defense access to confidential information that is irrelevant to the medical condition at issue without the safeguard of having either the plaintiff or his representative present.

10. That Sections 2-1003 and 8-802 are an impermissible invasion of the right to privacy, in violation of Art. I, Section 6 of the Illinois Constitution and other provisions of Illinois law protecting the fundamental right to privacy. Sections 2-1003 and 8-802 declare that the Plaintiff, upon the filing of his lawsuit, is deemed to have automatically waived any privilege between himself and any healthcare provider who has furnished care to the Plaintiff irrespective of any relevance to the litigation. Sections 20-1003 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). Thus, Plaintiffs invasion of privacy as a result of the privilege waiver cannot be mitigated or regulated by application to the court invoking the court's discretionary powers.

11. That Sections 2-1003 and 8-802 deny injured persons their fundamental right of access to the courts by imposing an unconstitutional condition -- the waiver of fundamental rights to privacy and the due process -- in order to exercise the right of access to the courts, in violation of Article I, Section 12 of the Illinois Constitution and other provisions of Illinois law.

12. That Sections 2-1003 and 8-802 are arbitrary and irrational, in violation of the due process clause and equal protection guarantees of the Illinois Constitution, Article I, Section 2.

13. That Section 2-1003 and 8-802 violate the Plaintiffs due process rights, in violation of Article I, Section 2 of the Illinois Constitution, by denying him his right to privacy and access to the courts. Plaintiff's healthcare provider-patient privilege is automatically waived as a consequence of the filing of the lawsuit and the court has no discretion to prevent the obtaining of confidential privileged information irrelevant to Plaintiff's suit. Plaintiff's due process rights of seeking redress through the courts has been abrogated.

14. That Sections 2-1003 and 8-802 violate the separation of powers guaranteed by Article II, Section 1 and Article VI, Section 1 of the Illinois Constitution by intruding on the province of the judiciary.

15.. That Sections 2-1003 and 8-802 are inconsistent and in direct conflict with Illinois statutes granting specific privileges and confidential status to certain information and materials. These statutes include, but are not limited to, the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq.), Alcoholism and Other Drug Abuse and Dependency Act ( 20 ILCS 301/30-5 ), AIDS Confidentiality Act (410 ILCS 305/1 et seq.), AIDS Confidentiality and Testing Code (77 Ill. Admin. Code 697), Medical Patient Rights Act ( 410 ILCS 50/3 ), Illinois Sexually Transmissible Disease Control Act ( 410 ILCS 325/8 ), Illinois Clinical Laboratory and Blood Bank Act ( 210 ILCS 25/7-115 ), Communicable Disease Report Act (745 ILCS 45/), Confidentiality of Statements Made to Rape Crises Personnel ( 735 ILCS 5/8-802.1 ), and Confidentiality of Statements Made to Personnel Counseling Victims of Violent Crime (735 ILCS 8/8-802.2).

16. That the Illinois Supreme Court has extensively examined and reviewed discovery procedures within the Illinois civil justice system culminating in the promulgation of new Supreme Court rules regarding discovery. These new rules were considered and approved by the Supreme Court subsequent to the enactment of Public Act 89-7 and became effective January 1, 1996. The aforesaid rules are not subject to legislative review or approval. Despite the enactment of Public Act 89-7 the Illinois Supreme Court readopted Supreme Court Rules 201(b)(1) and 201(b)(2). That Sections 2-1003 and 8-802 are inconsistent and in direct conflict with Illinois Supreme Court Rule 201(b)(1) which proves that only matter “relevant” to the subject matter involved in the pending action be discoverable. Further, Supreme Court Rule 201(b)(2) sets forth that all privileged matters against disclosure at the trial are privileged against disclosure through discovery. Thus, these Sections constitute an invasion of the power vested in the Illinois Judiciary, in violation of Article VI, Section 1 and usurp the inherent power granted to the Illinois Supreme Court as conferred in Article VI, Section 16 of the Illinois Constitution.

17. That in, (a) automatically waiving any privileges upon the filing of the Plaintiffs lawsuit; (b) sanctioning ex partecommunications between the defendant, defense counsel or their representatives and Plaintiff's treating healthcare providers; (c) removing any discretion of the court to make any relevancy determinations; and (d) removing any discretion of the court to make any determinations regarding inconsistencies and statutory construction between these sections and conflicting statutes, including but not limited to the statutes listed in Paragraph twenty-nine (29) of this Count, Section 2-1003 and 8-802 violate the separation of powers doctrine, set forth in Article II, Section 1 of the Illinois Constitution, by usurping the role of the judiciary over matters left to the exclusive control and regulations of the judicial branch.

18. That by depriving plaintiff's, based solely on their status as personal injury plaintiffs, of their fundamental right to privacy and the privileges and confidential status of the information and materials set forth in statutes included but not limited to the statutes listed in Paragraph twenty-nine (29) of the Count, Section 2-1--3 and 8-802 violate the equal protection guarantees of the Illinois Constitution, Article I, Section 2.

19. That Sections 2-1003 and 8-802 violate the Illinois Constitution Preamble's assurance of legal, social and economic justice.

Sections 8-2001 and 8-2003

20. That Section 8-2001 of the Illinois Code of Civil Procedure requires every private and public hospital to permit the examination and/or copying of hospital records regarding the Plaintiffs treatment by a holder of a consent pursuant to Section 2-1003 of the Illinois Code of Civil Procedure.

21. That Section 8-2003 of the Illinois Code of Civil Procedure requires every physician and other healthcare practitioner (except as provided in Section 2-1004) to permit the examination and/or copying of the Plaintiffs records by a holder of a Consent pursuant to Section 2-1003 of the Illinois Code of Civil Procedure - including records that are not demonstrably material to the pending action, as previously set forth, countenancing a substantial and unwarranted invasion of the Plaintiff's fundamental right to privacy.

22. That Sections 8-2001 and 8-2003 are unconstitutional to the extent that they require both private and public hospitals, physicians and other healthcare practitioners to permit the examination and/or copying of the Plaintiff's records by a holder of a Consent pursuant to Section 2-1003 as previously set forth in Paragraphs Seventeen (17) through thirty-three (33) of this Count.

The Severability Clause

23. That the severability clause of Public Act 89-7 (Section 990) is null and void in that the constitutionally invalid provisions of the Act are nonseverable from the remaining portions inasmuch as the various provisions of the Act constitute an interdependent legislative package designed to be passed in its entirety rather than as separate pieces. The provisions of the Act are so mutually connected with and dependent on each other, that the legislature-intended them as a whole, and if all could not be carried into effect the legislature would not have enacted the residual.

24. That the text of the Act provides evidence that Sections 2-1115.1 (noneconomic damages limitation), 2-1107.1 (jury instructions), 2-1116 (definition of tortfeasor), 2-1117(a) (elimination of joint liability), and 2-1117(b) (escape hatch for healing art professionals from 2-1117(a)) are mutually connected with and dependent on each other, as conditions, considerations or compensations for each other.

25. That members of the legislature were forced to adopt Public Act 89-7 as a legislative scheme against the “civil justice system” in its entirety. Members of the legislature were not given an opportunity to consider Sections 2-1003, 8-802 8-2001 and 8-2003 on their individual merits, but instead were presented with Public Act 89-7 as a complete and unified package made up of co-dependent parts.

26. That, inasmuch as they are not severable, the aforementioned provisions of Public Act 89-7 violate Article IV, Section 8 of the Illinois Constitution because they fail to be confined to one subject.

27. That the unconstitutionality of Sections 2-1003 and/or 8-802 renders the remaining provisions null and void, as Public Act 89-7 would be void in its entirety.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays for judgment as follows:

1. That the Court find that Sections 2-1003, 8-802, 8-2001 and 8-2003 of Act and each of them, are unconstitutional, null and void;

2. That the Court find that the Act's severability clause (Section 990 is null and void; thereby rendering Public Act 89-7 in its entirety;

3. That the Defendants, Taylor, Lee Helms Inc., and Allied, and each of them, and their respective agents, servants and employees, be enjoined from soliciting from the Plaintiff any authorization for the release of medical information, as described in the 1995 amendment to Section 2-1003 of the Code of Civil Procedure (735 ILCS 2-1003);

4. That the Defendants, Taylor, Lee Helms Inc., and Allied, and each of them, and their respective agents, servants and employees, be enjoined from soliciting from any healthcare practitioner, except in manners previously allowed before the passage of the Act, the disclosure of any information such practitioner(s) may have acquired in attending the Plaintiff, notwithstanding the Act's amendments to Section 8-802 of the Code of Civil Procedure (735 ILCS 8-802);

5. That the Defendants, Taylor, Lee Helms Inc., and Allied, and each of them, and their respective agents, servants and employees, be enjoined from discussing with any healthcare provider, except in manners previously allowed before the passage of the Act, any information such practitioner(s) may have acquired in attending the Plaintiff, notwithstanding the Act's amendments to Section 8-802 of the Code of Civil Procedure (735 ILCS 8-802);

6. That this Court waive the necessity of the Plaintiff's filing any bond, or in the alternative, that it set a fair and reasonable cost bond for the Plaintiff; and

7. That the Plaintiff have such other and further relief as the Court shall deem necessary and proper.

COUNT X
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF VARIOUS DEFENDANTS WITH REGARD TO SECTION 2-1115.1 OF THE ILLINOIS CODE OF CIVIL PROCEDURE.

NOW COMES the Plaintiff, VERNON BEST, by 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 - VIII as if fully set forth herein.

2. That on said date and at said location the Plaintiff suffered severe and permanent personal injuries that arose out of and in the course of his employment as a forklift truck operator.

3. That those injuries include second and third degree 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.

4. 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.

Section 2-1115.1
Limitations on Non-Economic Damages

5. That the Plaintiff has incurred, and will incur, “non-economic damages,” as that term is defined in the Act's amendment (735 ILCS 5/2-1115.2), in excess of $500,000 for that aspect of his claim.

6. That Section 2-1115.1 limits recovery of non-economic damages to $500,000 per plaintiff in “all common law, statutory or other actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine.”

7. That Section 2-1115.1 causes the Plaintiff immediate or impending injury because it deprives him of the opportunity to collect non-economic damages in excess of the $500,000 limitation.

8. That, particularly with reference to personal injury cases, the determination of the amount of a damages award is within the province of the jury. The law in Illinois has long been that persons injured by the tortious act of another are entitled to fair and reasonable compensation of all compensatory damages, economic and non-economic. The common law tradition of correcting excessive damage awards through remittitur or the granting of a new trial has long been followed in the courts of Illinois.

9. That, pursuant to Section 2-1007.1, the court is directed to mislead the jury by withholding from it the limitation on the Plaintiff's recovery of noneconomic damages.

10. That Section 2-115.1 violates the Illinois Constitution Preamble's assurance of legal, social and economic justice.

11. That the uncertainty regarding the constitutionality of Section 2-115.1 causes the Plaintiff immediate and impending injury because the Plaintiff cannot intelligently plan his litigation strategy unless he understands whether or not the $500,000 limitation will apply to his case. Plaintiff's choices as to the kind of witnesses to call, the legal theories to pursue, the resources to invest in his lawsuit, and settlement negotiations -- together with a host of similar litigation strategies immediately affecting his case -- all depend on the constitutionality of Section 2.1115.1.

12. That Section 2.115.1 denies injured persons such as the Plaintiff a meaningful remedy, and indeed any remedy at all for non-economic damages greater than $500,000, in violation of Article I, Section 12 of the Illinois Constitution.

13. That Section 2-1115.1 arbitrarily limits recoveries for non-economic damages to $500,000, and thus deprives the Plaintiff of the right of trial by jury, in violation of Article I, Section 13 of the Illinois Constitution.

14. That the Plaintiff's cause of action is a form of “property” that qualifies for constitutional protection. Section 2-1115.1 impermissibly reduces the value of private property of some members of society in order to benefit a private group in violation of Article I, Section 15 of the Illinois Constitution.

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