$24.25 Million Settlement Tops Survey

The top settlement in the fourth annual survey of Cook County personal injury settlements surpassed last year's largest accord by more than $10 million. And last year's was not small change.

Curt N. Rodin, lead counsel, and Bruce M. Dohen of Anesi, Ozmon & Rodin posted a $24.25 million settlement for a seriously injured ironworker, an Olympic leap over the largest single settlement counted last year, when Patrick A. Salvi obtained $13.102 million on behalf of an injured tuckpointer.

Rodin, a former president of the Illinois Trial Lawyers Association and PI practitioner for 22 years, also claimed the most settlements greater than $1 million.

Rodin was the lead plaintiff's counsel on six of the 119 settlements tallied in this year's survey, totaling a whopping $40.99 million for an individual attorney. Bruce M. Kohen, also a partner in the 28-lawyer Anesi firm, was Rodin's co-counsel on all but two of the large settlements.

Robert A. Clifford of Clifford Law Offices , who settled three cases worth $18.975 million, was the closest to Rodin (see box, page 31).

John D. Cooney of Cooney & Conway trailed Clifford in settling three cases worth a total of $16.033 million, while Todd A. Smith of Power, Rogers & Smith ended up just slightly behind Cooney in settling four cases worth $15.2 million.

Keith A. Hebeisen of the Clifford Law Offices settled more cases than either Clifford , Smith or Cooney but did not come near their total dollar value. He obtained five million-dollar accords - all on medical malpractice cases - that added up to $7.4 million.

The survey counted only settlements of $1 million or more that were published between July 1, 1996, and June 30, 1997, in either the Cook County Jury Verdict Reporter, the Chicago Daily Law Bulletin or the Chicago Lawyer magazine during the survey period. All three are publications of Law Bulletin Publishing Co.

In total, the 119 cases yielded $317.45 million in out-of-court published settlements in this year's survey, compared to 81 cases last year that totaled $182.34 million.

Beyond the nearly 50 percent increase in published settlements in the one-year period, there were far more settlements at the high end of the spectrum. This year three settlements greater than $10 million were published in the survey period, compared to just the one that Salvi had last year. Likewise, accords of $5 million or more shot up from just four last year to 15 this year. The leader board:

As in two of the prior three annual Chicago Lawyer surveys of settlements, the Loop-based Corboy & Demetrio garnered the most million-dollar accords for a single plaintiffs' firm, racking up 22 settlements worth $56.235 million (see box, page 30). The figure represents nearly 18 percent of the total counted in the survey.

One of the cases included in the Corboy column is also counted in the Clifford column (see detailed charts, pages 21-29). That case, handled by Philip H. Corboy, Michael K. Demetrio and Daniel M. Kotin, is shared with Clifford and Patricia Carlson Durkin of the Clifford Law Offices . The plane crash case that settled for $2.9 million was filed when the two prominent PI shops were united in 1994.

The Clifford firm is second on the settlement leader board for firmwide results. The 18-lawyer shop snagged 14 settlements worth a total of $34.268 million, including Clifford's $15-million accord on an air crash case.

Though the Clifford firm is second in the number of settlements obtained over $1 million, Rodin's firm - with only six settlements - is in second place when measured by the value of the settlements. The six cases produced $40.99 million on five work-injury and one medical malpractice claim.

The 12-lawyer Cooney & Conway, which had ousted the Corboy firm from its perch at the top in published settlements last year, again ranks among the high-performers with eight settlements firmwide. Cooney & Conway lawyers rang up $25.55 million in settling wrongful-death lawsuits arising from asbestos exposure.

In counts firmwide, Power, Rogers & Smith had the fourth highest number of published settlements, with eight cases totaling $25.05 million. Smith and one of the firm's other name partners, Joseph A. Power, Jr., had the largest of the firm's settlements with a $6 million accord in a med-mal suit.

The nine-lawyer Kralovec, Jambois & Schwartz registered four settlements greater than $1 million, totaling $9.65 million. The firm, formerly known as William D. Maddux & Assoc., changed names when the founding partner joined the bench in 1991. Name partner John B. Kralovec, a lawyer for 16 years, was lead counsel for three of his firm's four million-plus cases.

Hofeld & Schaffner's three settlements were collectively larger than the Kralovec firm's four accords. The Hofeld firm registered $13.75 million in settlements on two medical negligence suits and one work-injury case.

Five suburban plaintiffs' firms also claimed million-plus settlements, up slightly from the four firms on the list last year. One suburban practitioner, Michael J. Marovich of the nine-lawyer Buikema, Hiskes, Dillner, O'Donnell & Marovich in Orland Park, noted that his settlement of a product-liability case for $3 million is one of the largest for a client older than 65. His client, asphalt paverCharles Eighner, was 69 at the time of the accident.

A newcomer to the million-dollar settlement ranks, Robert J. Friend of the six-lawyer Evins, Friend & Sklare, was building evidence to support a punitive damages claim in the train-crash case he settled for $2 million. Though the case was Friend's first million-dollar settlement, the 10-year Loop practitioner also has won a seven-figure verdict. The top settlement

The work-injury case that topped the charts for Rodin and Kohen arose when a male ironworker fell 50 feet in August 1994 while building an addition to State Farm Insurance Co.'s home office in Bloomington. Pekin resident Jeffrey Lovins suffered serious back injuries in the fall, rendering him a respirator-dependent quadriplegic.

Lovins, married and the father of twins, was 29 at the time of his accident. He now needs 24-hour care.

The lawsuit, Rodin notes, settled just slightly more than two years from the date of the accident. Those were 24 action-packed months for the two plaintiffs' lawyers and four primary defense lawyers involved in the lawsuit. They took some 60 depositions on an expedited discovery schedule, meeting almost daily in early 1996.

Many deponents were supervisory personnel with the various defendants; Rodin said he was trying to elicit testimony to prove each defendant had sufficient control over the job site to be held responsible for the injury

From the start, Rodin and Kohen knew the case was worth big money.

Our original demand was $25 million, and we never wavered from that demand throughout the case and through the completion of it," Kohen said. Eventually, the demand dropped to $24.25 million.

The $750,000 reduction is approximately the amount that Rodin, Kohen and their client determined that a delay in trying the case would be worth. The case was on hold for trial, awaiting a decision from the Illinois Supreme Court on whether the repeal of the Structural Work Act is retroactive. That case was still pending with the high court in early August.

The trial date was delayed and would still be delayed if we did not settle," Kohen said. So, we took a discount based on settling it sooner rather than later because we would be getting the money that much earlier."

It was not a cheap case to prepare. Without disclosing how much his firm put into Lovins' case, Kohen said a similar work-injury suit could easily run $50,000 to $100,000 in expenses.

The case reached the highest echelon of settlements primarily based on the extent of Lovins' injuries, which Rodin said were as bad as a person could have and still live."

Rodin said the Lovins were model people, "and this contributed to the high settlement amount. Also,he said he had proof of significant fault" against large corporate defendants.

He said the defendants also blamed each other for the accident, which worked to his advantage.

And, I don't mind saying this: The preparation work that Bruce and I did allowed the case to be set up in that way, too," Rodin said.

The attorneys hammered out the settlement on their own, and Cook County Circuit Court Judge Judith Cohen later dismissed the case on stipulation. Jumping through hoops

Settlement did not short-circuit a trial for several lawyers in the million-plus coterie.

Gerson B. Field was on trial for an entire month on his auto-crash case and had only one witness to go when the case settled. Before trial, Field, who runs his own Loop-based firm, demanded $2 million to settle while the offer stood at about $200,000. The offer moved up slowing as the trial progressed, Field said, until they agreed to $1 million.

"It came close to going to the jury," he added.

Robert B. Phillips took his case even closer to a verdict than Field. After a four-week trial, Phillips, a partner in Phillips & Sweeney, and co-counsel Michael P. Barone of Fishman, Fishman & Saltzberg settled their auto-crash case just before closing arguments.

Before Phillips and Barone picked jurors in Judge James Fitzgerald Smith's courtroom, they had $250,000 on the table, which eventually moved up to $1.75 million.

One of Rodin's cases also settled after going through some trial-like paces. Rodin and defense attorney Thoms J. Lyman III, a partner at Querrey & Harrow, participated in two sessions of non-binding mediation with JAMS/EnDispute before reaching their $2.65 million settlement for an ironworker who fell 22 feet on a construction site.

Though Rodin said the mediation was Lyman's idea, Lyman recalls that Rodin brought it up first. All parties, including two other defendants, had to agree to the mediation, Lyman pointed out. The parties settled shortly after the second mediation session.

They were the facilitator, "Lyman said. They keep both sides talking." Med-mal

As in the past three years, med-mal cases represented the biggest share - nearly half - of the 119 million-dollar-plus settlements (see box, page 30).

Fifty-five med-mal suits settled for more than $1 million in the survey period, cumulatively worth $122.353 million. The figure represents an average $2.225 million settlement per case.

A perennial million-dollar-plus attorney, James H. Canel of Canel & Hale, who primarily practices in medical negligence cases, said he is seeing more and more tainted medical records in litigationwith doctors, hospitals and nurses.

In the one case he settled this year in the survey period for $5 million, Canel noted that he ran into several versions of nurses' notes and medical records concerning the treatment a pregnant woman received when she arrived in labor at Holy Cross Hospital.

Canel alleged the doctors delayed too long in deciding to perform a Caesarean section, causing the woman's son to be born with cerebral palsy. Through discovery, Canel learned that some nurses' notes had been rewritten to show events occurring in different time frames than originally recorded and with varying levels of doctor's involvement.

I've had the rewrite phenomenon many times," Canel said. It no longer surprises me."

Richard B. Rogich had few surprises in the med-mal case he closed out for $6.5 million. The suit against the University of Chicago Hospitals settled even before either he or defense counsel Joseph A. Camarra of Cassiday, Schade & Gloor disclosed expert witnesses.

It was an excellent liability case, meaning there were multiple mistakes made," said Rogich, a 15-year practitioner who runs his own three-lawyer Loop firm. Mr. Camarra, to his credit, saw that very early on; and, rather than just work on it and run up the bill like other defense attorneys, he prevailed upon his client to discuss settlement early on."

Camarra, a 27-year practitioner who concentrates in med-mal cases, said his resolution with Rogich was one of very few seven-figure settlements he had last year. He noted that he tried two other large medical negligence cases to verdict in the same time period, obtaining not guilties on both.

The med-mal case that Steven M. Levin of the five-lawyer Levin & Percontin settled in February for $1 million against a doctor was not the end of the case. Levin then went to trial in early March against the defendant hospital, winning a $6.716 million verdict, based on the actions of the hospital's resident doctors, Levin noted.

The jury gave us basically dollar-for-dollar what we asked for," he added.

The hospital was represented by Rudolf G. Schade Jr. of Cassiday, Schade & Gloor; the case in early August was in post-trial motions before Judge Irwin J. Solganick. Wrong place, wrong time

John M. Falacz, Jr., a 40-year PI practitioner, was among a half-dozen lawyers with million-dollar-plus settlements who said their clients' injuries or deaths were simply a matter of being in the wrong place at the wrong time."

The partner at Falacz & Rakers represented the estate of a 28-year-old makeup artist who just happened to be filling in for someone who called in sick at a photo shoot in a home that blew up in a freak gas explosion.

Talk about bad timing," Falacz said.

He settled the wrongful-death case for $4.35 million.

Edward G. Willer of Corboy & Demetrio also recounted an unusual set of circumstances underlying his lawsuit on behalf of a carpenter, who, Willer said, was simply at the wrong place at the wrong time."

Willer, assisting name partner Thomas A. Demetrio, obtained a $3.085 million settlement in the work-injury case in which a sidewalk elevator lift collapsed, injuring Roy Mason. The elevator was about 80 years old with a broken pulley system, which Willer noted never gave out completely until his client happened along.

Willer, who worked with the late Leonard M. Ring for 22 years, recalled that Mason contacted him on a Monday. Willer obtained a temporary restraining order the next day to preserve the elevator as it was at the time of the accident.

I had four engineers out there by that Wednesday, he recalled. You could visibly see that the sheave that ran on the cables was broken. It had been broken for years.

Brian Murphy, an associate at Hofeld & Schaffner, said of the work-injury case he settled for $4.75 million: If it wasn't so tragic, it would be like a Keystone Cops comedy.

Murphy and Howard Schaffner's client, an elevator constructor, was hit on the head by chunks of concrete that had fallen about six stories down an elevator shaft. The concrete fell when two employees, unbeknown to Murphy's client, began fixing rebar that stuck out from a concrete floor. They were pounding down the rebar, chipping the concrete as they went along, Murphy said.

A 1« pound concrete chunk hit Thomas Hebda's safety helmet, knocking it off; and a second chunk hit him on his bare head. He was hospitalized for two weeks and in rehabilitation for three months. The moss collectors

Though Paul B. Episcope's 1984 lawsuit took 12 years to settle, he counts the delay as somewhat of a value-enhancer for his wrongful-death claim.

He attributes the case's stagnancy to the handling of one legal issue in the case. The defendant, Avis Rent-A-Car, represented by Herbert P. Carlson of Iverson, Carlson & Assoc., had won summary judgment in 1987 on the question of whether the company was responsible for the actions of its employee while she was driving home from work in one of the company's rental cars. She hit and killed a nine-year-old boy on his bicycle.

Episcope appealed the entry of summary judgment in Avis' favor, prevailing after nearly three years in the 1st District Illinois Appellate Court. More time was eaten up with Avis' unsuccessful petition for leave to appeal to the Illinois Supreme Court.

Once the case was returned to the trial court, the two sides still had extensive discovery to complete. Avis then retained Thomas M. Crisham of Quilin & Crisham at the 11th hour to really do all the negotiations, as Episcope recalls it. The case then quickly settled for $1.637 million.

If Episcope had settled the suit right after he filed it, he said he would have been lucky to get his client more than $400,000. In 1985, remember there were almost no $1-million verdicts for a death case on a child," Episcope said. Prices have gone up, shall we say. . . . . . . The delay worked substantially to our benefit."

A med-mal case that Robert J. Glenn settled went through a similar odyssey that also included a trip to the appellate court, but he got a new case number when he landed back in the trial court. Originally filed in 1990, Glenn's case went to trial in 1994, producing a $1.149 million verdict in favor of plaintiff Carol Senderak.

On defendant's post-trial motions, the late Circuit Judge Edward G. Finnegan granted a new trial. Glenn appealed, getting what he described as a mixed bag result. The appeals court ordered a new trial on damages only, but it determined that the plaintiff could not use a jury instruction that would have allowed damage for the loss of society for unborn children that the 29-year-old woman might have had, if not for the allegedly unnecessary hysterectomy she underwent in 1988.

The case received a new court number in 1996 when it came back down from the appellate court. With a trial date looming in February 1997, the case settled for $1 million.

Robert J. Zaideman's work-injury suit carries a similar history as Glenn's case. Originally filed in 1989, the case was before the 1st District Appellate Court for two years on plaintiff's appeal of partial summary judgment in favor of defendants. The defendants prevailed on appeal.

The case was assigned a 1995 court number when it returned to the trial court. It settled for $1.28 million in 1996 - nine years after the demolition laborer was injured in a fall through an unprotected hole in a job site's floor.

The med-mal case that Paul P. Wolf settled in February 1997 was originally filed in 1982 but had been voluntarily dismissed. Premised on medical negligence that allegedly occurred in 1975 when physicians failed to diagnose sepsis in a newborn male, the suit had been with Wolf's office, John G. Phillips & Assoc., for about 12 years.

Twenty-two years after the occurrence, the suit settled for $4 million. Persistence, I tell ya," Wolf intoned.

Bruce D. Goodman's client in a med-mal case had a slightly shorter wait for a settlement: 14 years from the date of the occurrence. Goodman, a partner in Steinberg, Polacek & Goodman, filed suit in 1989 for alleging that fetal distress was not properly diagnosed in a post-term fetus. After problems tracking down one defendant doctor and taking more than 30 depositions, the case settled in December 1996 for $2.35 million. Fast-moving cases

In less time than it takes some people to get a doctor's appointment scheduled, Timothy R. Tylersettled a major med-mal suit earlier this year.

In less than two months, Tyler filed and settled the lawsuit against Mercy Hospital and Medical Center for $1 million. Tyler filed Myrna Leggs' action on Feb. 28, 1997, and obtained its dismissal, on stipulation, on April 25, 1997.

Tyler is certain his suit had the right facts for a quick settlement:

An adult male with a history of psychiatric problems went to the hospital's emergency room with both physical and psychological complaints in 1996 and was put in the psychiatric ward, where he had a heart attack and died.

I argued to them that the jury might award more than $1 million, and they did not want to try to defend this case because the negligence was blatant and gross," Tyler said. It was just obvious that they had screwed up."

Tyler, one of the very few African-American lawyers in the PI million-dollar ranks, said he did not hold out for a greater amount because defense counsel Vito M. Masciopinto of Lowis & Gellen could point out that his client was not the model" plaintiff: The 48-year-old decedent was overweight, unemployed and not taking care of his two children.

You have to weigh your odds," Tyler said. If you have a good plaintiff - a worker, married, no criminal background - you have a whole different story."

A lawyer for six years, Tyler runs his own three-lawyer office. He also made the million-dollar list last year, sharing credit for a $4.5 million med-mal settlement with Stuart J. Bobrow and Matthew C. Friedman. The relative youthfulness of his law office, Tyler said, may suggest to some defense firms that it does not have the wherewithal to finance a complex case or the trial experience to win handsome verdicts.

Because we are young, some of the major firms think we cannot stand up in court and state our side," Tyler side. Some of the lawyers are of the opinion that we will not fight all the way because we don't have the money for experts and such. That's a fallacy. We like juries, as a matter of fact."

Another case that moved rapidly once it got on the circuit court's docket was expedited for trial, based on the plaintiff's advanced years. Jeanine O. Stevens of Clancy & Stevens said she and her partner, Thomas A. Clancy, sought a quick trial because their client, Theresa Rompa, was 81 years old when she received allegedly negligent medical treatment that led to paraplegia.

The parties crammed in about two dozen depositions in less than a year, including 10 expert witnesses for the defense and four for plaintiff. Stevens' 1995 lawsuit settled for $1.4 million the morning that it was scheduled to go to trial in October 1996. Stevens said the accord is one of the largest med-mal settlements for a woman Rompa's age.

Another plaintiffs' attorney simultaneously had one of the fastest-moving cases in the survey resultsand one of the slowest moving. Peter J. Posner of Leonard C. Arnold, Ltd. settled a 1995 med-mal suit in September 1996 for $1.005 million. He credits the circuit court's individual calendar system and Judge Jennifer Duncan-Brice for advancing the case.

I'd like to take credit for that, but it had nothing to do with me," Posner noted.

In contrast, a 1990 med-mal suit, in which Posner obtained a $2-million settlement, sat on the court's docket for nearly six years. It was one thing after another in that case continuance in the trial date when the defense lawyer's mother had a heart attack, another continuance when one of the defendant doctors was pregnant and another delay at Posner's behest so he could handle a higher-priority case.

It was delayed for a long time, but it had nothing to do with the merits of the case," Posner lamented. Judges' involvement

Chief Judge Donald P. O'Connell of Cook County Circuit Court settled more of the big-buck cases than any other judge. The circuit's chief settled 14 of the cases, holding numerous pre-trial conferences to hammer out accords.

It's very gratifying to work with the lawyers to achieve the results that are mutually agreeable among all the parties and to reach an amicable resolution of the case," O'Connell said. It's a very time-consuming process and at times it's very frustrating, but the reality is that the resolution of these cases result in significant savings of trial time and expense for everyone involved, including the circuit court."

Most of the million-dollar cases require multiple pretrial conferences before the parties are ready to settle.

With 13 settlements to his credit, Circuit Judge Donald J. O'Brien Jr. was only one case shy of tying O'Connell. Judges William D. Maddux and Judith Cohen each settled 10 of the million-plus cases, which Judge Dean M. Trafelet, who oversees all the circuit's asbestos litigation, has his name connected to eight of the settlements in the survey.

Circuit Judge Richard J. Elrod settled seven cases, while Circuit Judge Walter J. Kowalski participated in six. Tort reform

Numerous plaintiffs' lawyers pointed out that their super-sized settlements were an endangered species.

Several lawyers predicted Chicago's legal community would experience few million-plus settlements if the Illinois Supreme Court does not affirm a Cook County Circuit Court's ruling that the Civil Justice Reform Amendments of 1995 are unconstitutional.

The state's high court heard arguments in May on the constitutionality of the amendments, which impose various restrictions and a $500,000 cap on non-economic damages in PI cases.

Clifford noted that his $15-million settlement in the wrongful death case on behalf of two plaintiffs killed in a plane crash was a pure non-economic case" because neither the woman nor young child was employed.

Kohen agreed that many settlements would be lower.

The amount of these cases would have been incredibly lower and these people would have been deprived of tremendous rights and the ability to take care of their medical care, as well as receive fair compensation," said Kohen.

Some of the most devastating cases are most affected by tort reform," he added. Believe me, you won't have a very big chart in the years to come if the tort reform act stands." Not included

Several lawyers interviewed said they had million-dollar settlements that could not be published, either in part or in the entirety, due to confidentiality agreements. Those settlements were not counted in the survey.

One attorney, Paul G. O'Toole of Reibman, Hoffman & Baum, was able to publicly report that he had settled a products liability suit for $2.75 million, but he did not identify the paying defendants. As in prior annual surveys, settlements that are partially confidential (disclosing the amount but not the defendants or vice versa) are not counted in the survey results.

Other attorneys said they had settled big cases during the survey period but that those cases had not yet been published. For the sake of uniformity, those settlements were not counted in totals for this survey.

Among those attorneys was William R. Fahey, who has worked on asbestos cases for 12 years with the Cooney firm. Fahey said that his partners settled another 10 cases for more than $1 million in early 1997, but they had not yet been published and were not tallied in the survey.

All of the Cooney firm's settlements were a part of approximately 200 cases filed before January 1994 that were consolidated for trial starting in January 1997. Just as lawyers began picking juries in various courtrooms, the cases settled, Fahey said. The oldest case from Cooney's office that settled for more than $1 million was a straggler from 1989, which was resolved for $1.347 million with six of the numerous asbestos defendants.