Forklift Equipment Product Liability Complaint - Part 3

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15. That Section 2-1115.1 violates the separation of powers doctrine embodied in Article II, Section 1 and Article VI, Section 1 of the Illinois Constitution inasmuch as it constitutes a legislatively-imposed remittitur compelling the court to reach the legal conclusion that the award in a particular case is excessive regardless of the record of the case.

16. That Section 2-1115.1 operates on a selective and discriminatory basis, because it is linked to “non-economic” damages, in violation of equal protection principle of Illinois law, which establish that classification based on economic circumstances are highly suspect.

17. That Section 2-115.1 discriminates against the most severely injured victims, in violation of equal protection principles under Illinois law. In fact, the more severely a plaintiff is injured, the greater the limitation's distorting effect.

18. That Section 2-1115.1 is arbitrary and irrational, in violation of Article I, Section 2 of the Illinois Constitution. For example, by definition, the limitation comes into play to reduce only awards that reviewing courts would otherwise find reasonable. Moreover, the limitation applies only to cases in which ordinary workers and consumers are likely to be plaintiffs. The limitation does not apply, for example, to restrict non-economic damages in defamation suits and other actions involving well-to-do plaintiffs.

19. That Section 2-1115.1 lacks a rational basis for any legitimate governmental purpose for one or more of the following reasons:

a. the current civil justice system consistently and fairly compensates injury victims as determined by the facts and evidence of each case rather than the utilizing an unreasonable and arbitrary predetermination;

b. the Illinois civil justice system, through its citizenjurors and the judicial branch with its use of its power of remittitur when necessary, fairly and accurately assures the fairness of jury awards;

c. the available evidence shows that in recent years that there has been no significant increase in the average size of the verdicts, nor has there been any significant increase in the percentage of verdicts for injured citizens; therefore there is no plausible reason to suggest that the juries in Illinois are “out of control” or that the civil justice system is in need of drastic change;

d. Illinois common law has always recognized that non-economic losses are no less important than out-of-pocket expenses; it has always been the public policy of the State of Illinois that an injured party is entitled to fair and complete compensation for all losses suffered by the wrongful act of another, including non-economic losses;

e. the consistent application of existing jurisprudence provides individualized, fair and complete damage awards which are just and benefit all parties and society;

f. there is more than a century of jurisprudence of Illinois for court to rely upon assessing and reviewing non-economic damages; non-economic damages are individualized and depend entirely on the facts in evidence presented to a trier of fact subject to trial. Appellate and Supreme Court review;

g. the judicial branch is empowered to, and is perfectly capable of, monitoring and controlling jury verdicts which may be perceived to be excessive;

h. the majority of states (including Iowa and Kentucky, which border Illinois) do not impose arbitrary and unreasonable limits on non-economic damages;

i. there is no scientific basis for concluding that damages for pain, suffering, disability, disfigurement, loss of society and loss of consortium of the injured party are any more difficult for the jury to determine than those for economic loss;

j. available evidence shows that in these states that limit non-economic damages, employment, health care costs, availability of health care and the cost of consumer do not improve;

k. there are no objective studies to indicate that limits on non-economic damages will improve health care in rural Illinois; no state that has imposed restrictions on jury verdicts has seen an improvement in rural health care availability;

1. a limitation on non-economic damages will deny injured persons recovery for their full economic losses;

m. limiting non-economic damages will discourage settlements since the defendants will have little incentive to settle even the most catastrophic cases.

The Severability Clause

20. 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.

21. That the text of the Act provides evidence that Sections 2-1115.1 (noneconomic damages limitation), 2-1117.1 (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.

22. That the 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 Section 2-1115.1 on its individual merits, but instead were presented with Public Act 89-7 as a complete and unified package made up of co-dependent parts.

23. That, inasmuch as it is 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.

24. [That] the unconstitutionality of Section 2-1115.1 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 Section 1115.1 of Public Act 89-7 unconstitutional, null and void;

2. That the Court find that the limitation upon recovery for “non-economic damages” is unconstitutional, null and void;

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

4. 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

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

COUNT XI
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF VARIOUS DEFENDANTS WITH REGARD TO SECTION 2-1107.1 OF THE ILLINOIS CODE OF CIVIL PROCEDURE.

NOW COMES the Plaintiff, VERNON BEST, by his attorneys, and complaining of the Defendants, Taylor, Helms, and Allied, 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 the circumstances surrounding the Plaintiff's injuries give rise to a cognizable cause of action against Taylor. Helms, and Allied, and each of them, under the common law of Illinois.

Section 2-1107.1
Jury Instructions

3. That the Plaintiff's cause of action is predicated on common law negligence. As such, the jury will be required to assess the nature and extent of any contributory negligence attributable to the Plaintiff. Further, 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.

4. That Section 2-1107.1 requires that the court shall inform the jury that compensatory damage awards are tax-free, but, at the same time, the court must conceal from jury that the Defendant shall not be liable if the Plaintiff's contributory fault is greater than fifty percent (50%). The court must give the one instruction and must not give the other regardless of its own discretionary judgment or of the facts of the particular case before it. Further, the court must not inform the jury that the Plaintiff's verdict is limited to $500,000 for non-economic damages pursuant to Section 2-1115.1 of the Illinois Code of Civil Procedure.

5. The Act removes discretion from the court to determine whether the jury should be instructed on the subject under consideration in light of the facts of the particular case before the court. This amounts to stripping the judicial branch of a discretionary power properly belonging to it both as the prerogative of the judiciary under common law, and as codified in a Supreme Court rule adopted pursuant to the constitutional authority vested in the Supreme court by Article VI, Section 16, of the Illinois Constitution. Section 2-1107.1 of the Act directly violates State of Illinois Supreme Court Rule 239(a). This constitutes a violation of Article VI, Section 16, of the Constitution of the State of Illinois and is violative also of Article II, Section 1, the separation of powers principle.

6. That Section 2-1107.1 directs the trial court to mislead the jury by withholding from the jury (a) the law's elimination of the Plaintiff's recovery in the event his contributory fault is more than 50% of the proximate cause of his injury, and (b) the limitations on the Plaintiff's non-economic damages set forth in Section 2-1115.1.

7. that the uncertainty regarding the constitutionality of Section 2-1107.1 causes the Plaintiff immediate and impending injury because the Plaintiff cannot intelligently plan his litigation strategy unless he understands whether the jury will be instructed that (a) the Defendant shall not be liable if the Plaintiff's contributory fault is greater than fifty percent (50%), (b) compensatory damages awards are tax-free, and/or 9c) the verdict is limited to $500,000 for non-economic damages. The Plaintiffs 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 2-1107.1.

8. That Section 2-1107.1 violates Article I, Section 2 of the Illinois Constitution, by depriving the persons of property without due process of law and denies persons the equal protection of the laws.

9. That Section 2-1107.1 violates Article I, Section 13 of the Illinois Constitution, which guarantees that the right of trial by jury as heretofore enjoyed shall remain inviolate.

10. That Section 2-1107.1 violates Article IV, Section 13 of the Illinois Constitution, as it constitutes a special law where a general law can be made applicable.

The Severability Clause

11. 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.

12. That the text of the Act provides evidence that Sections 2-1115.1 (noneconomic damages limitation), 2-1107.1 (jury instructions), 2-116 (definition of tortfeasor), 2-1117(a) (elimination of joint liability), and 2-1117(b) (escape for healing art professionals from 2-117(a)) are mutually connected with and dependent on each other, as conditions, considerations or compensations for each other.

13. 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 legislatures were not given an opportunity to consider Section 2-1107.1 on its individual merits, but instead were presented with Public Act 89-7 as a complete and unified package made of co-dependent parts.

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

15. That the unconstitutionality of Section 2-1107.1 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 Section 2-1107.1 of Public Act 89-7 to be unconstitutional, null and void;

2. That the Court find that the Act's prohibition upon a court instructing a jury upon the maximum recovery for “non-economic damages” is unconstitutional, null and void;

3. That the Court find that the Act's prohibition upon a court instructing a jury upon the legal effect of a finding of greater that 505 of comparative fault is unconstitutional, null and void;

4. That the Court find that instructing the jury on the lack of taxability of its verdict is unconstitutional, null and void;

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

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 XII
COMPLAINT FOR DECLARATORY RELIEF AND TO OTHERWISE ENJOIN THE CONDUCT OF VARIOUS DEFENDANTS WITH REGARD TO SECTIONS 2-1116 AND 2-1117 OF THE ILLINOIS CODE OF CIVIL PROCEDURE AND SECTIONS 3.5 AND 5 OF THE ILLINOIS JOINT TORTFEASOR CONTRIBUTION ACT.

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

Interrelationship of the Parties

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 the, under the common law of Illinois.

3. That the Plaintiff has filed a Complaint at Law against said Defendants in the Circuit Court, Third Judicial Circuit, Madison County, Illinois (Law Division), Counts I - VIII herein, alleging a cause of action arising under the common law, which will require the jury, pursuant to Section 2-1117 of the Illinois Code of Civil Procedure, to make various allocations of fault in order to determine the proper share of liability of each Defendant, Plaintiff's employer, or any other person who may be deemed a “tortfeasor” as defined in Section 2-116 of the Illinois Code of Civil Procedure.

4. That notwithstanding the existence of Section 2-117 and the fact that contribution is inherently irreconcilable with several liability, under Public Act 89-7 the circumstances surrounding Plaintiff's injuries gives rise to a cognizable claim by the named Defendants and make it likely that they will claim contribution against Laclede Steel under the Illinois Joint Tortfeasor Contribution Act ( 740 ILCS 100/1 -5).

5. That it is likely that the Plaintiffs employer, Laclede Steel, will be found to be at least one (1%) percent at fault for the injuries sustained by the Plaintiff.

Sections 2-116 and 2-117
Several Liability

6. That under Section 2-1116 there is no requirement that the Court find that any duty under the law exists before a jury can find any person (including nonparties) to be a “tortfeasor,” and thus, be liable to the Plaintiff in a manner so as to reduce the damages owed by any of the named Defendants herein.

7. That Section 2-1117, by eliminating the doctrine of joint liability, prevents the Plaintiff from obtaining full recovery for even those losses not attributable to his own fault. His recovery against the Defendants is limited to their respective degrees of “several” liability; any liability of his employer -- or other unnamed tortfeasor in the personal injury action -- will further diminish the Plaintiff's recovery.

8. That principles of comparative fault do not render an indivisible injury divisible.

9. That in the absence of joint liability, the Plaintiff must bear the burden of an insolvent tortfeasor.

10. That a defendant's liability is based upon a violation of a duty toward another; a plaintiff comparative fault rests on no such violation.

11. That Sections 2-1116 and 2-1117 have an immediate and impending effect on the Plaintiff. The abolition of joint liability deprives Plaintiff of any assurance that he will receive full compensation for his injuries. 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 Sections 2-1116 and 2-1117.

12. That Section 2-1117 abrogates the well-established law in Illinois that persons injured by the tortious act of another are entitled to fair and reasonable compensation of all compensatory damages, economic and non-economic. It allows the Plaintiff's recovery to be diminished when a tortfeasor is partially to blame for the Plaintiff's injuries, but that tortfeasor is legally immune or unable to pay for its pro rata share of responsibility. The effect of Section 2-1117 becomes even more ominous where there is a non-party tortfeasor, who conceivably could be anonymous.

13. That joint liability is a remedy fashioned by the courts for over a century. The legislative abrogation of that doctrine is an invasion of the judicial role to fashion such remedies in violation of the separation of powers doctrine articulated in Article II, Section 1 and Article VI, Section 1 of the Illinois Constitution.

14. That the elimination of joint liability would work a serious and unwarranted deleterious effect on the ability of any injured plaintiff to obtain adequate compensation for his injuries. Section 2-1117 violates Article I, Section 12 of the Illinois Constitution inasmuch as it deprives the Plaintiff of the guarantee that he will find a full and complete remedy for his injuries.

15. That Sections 2-1116 and 2-1117 are inapposite to the strong public policy articulated in the preamble of the Illinois Constitution -- that our constitution was adopted in part to provide for the “health, safety and welfare of the people...” Further, Section 2-1117 violates Illinois Constitution Preamble's assurance of legal, social and economic justice.

16. That Sections 2-1116 and 2-1117 violate the Illinois constitutional guarantee of due process, Article I, Section 2, because they permit a culpable defendant to reduce its liability by shifting blame to immune, bankrupt, absent, or even anonymous parties who have no incentive to challenge the defendants' assertion that they are responsible for the plaintiff's injury and who may be beyond the plaintiff's ability to confront and cross-examine.

17. That, when taken with other provision of Public Act 89-7, Section 2-1117 becomes impermissibly vague in all of its application. Section 2-1117 purports to extinguish joint liability, leaving a defendant liable only for its pro rata share of responsibility. However, Section 3.5 and 5 of the Joint Tortfeasor Contribution Act ( 740 ILCS 100/3.5 & 5), unambiguously preserve what Section 2-1117 supposedly was intended to eradicate. Section 2-1117 cannot be reconciled with the continued existence of the Contribution Act -- the two cannot coexist.

18. That, by itself and taken with the Joint Tortfeasor Contribution Act, Section 2-1117 violates Article I, Section 23 of the Illinois Constitution inasmuch as it allows a tortfeasor to minimize its own responsibility by attributing fault to others who may not, as non-parties, be present to defend or refute the tortfeasor's allegations of fault.

19. That Section 2-1117 deprives the Plaintiff of equal protection as mandated by Article I, Section 2 of the Illinois Constitution. Section 2-1117(b) provides that joint liability will continue to apply to medical malpractice actions in the event that the limitation on non-economic damages under Section 2.1115 are found to be unconstitutional. Doctors, hospitals, and other medical providers have, without any cogent rationale, been contingently excluded from the remaining universe of potential tortfeasors.

20. That Section 2-1117(b) constitutes special legislation inasmuch as it confers a general privilege to healthcare practitioners to the exclusion of others similarly situated and discriminates in favor of this select group without a reasonable basis in violation of Article IV, Section 13 of the Illinois Constitution. Section 2-1117(b) provides that joint liability will continue to apply to medical malpractice actions in the event that the limitations on non-economic damages under Section 2-1115.1 are found to be unconstitutional. Doctors, hospitals and other medical providers have, without any cogent rationale, been contingently excluded from the remaining universe of potential tortfeasors.

21. That Section 2-1117(b), as special legislation, does not survive constitutional scrutiny as there is no reasonable basis for the differentiation.

22. That the Plaintiff's cause of action is a form of “property” that qualifies for constitutional protection. Section 2-1117 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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