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By Jason G. Schutte

Synopsis.

Appellate court provides excellent discussion of provocation under the Illinois Animal Control Act in affirming defense verdict in dog bite personal injury claim in Claffey v. Huntley, 2021 IL App (1st) 191938.

Facts of Case.

Plaintiff filed suit against defendants seeking recovery under the Illinois Animal Control Act.[1] Plaintiff appealed defense verdict from jury trial.

Plaintiff was a mailman for the United States Post office at the time of the bite.[2] Plaintiff was bitten on his right hand as he was delivering mail to defendants’ home. He was aware that the defendants’ had two dogs and heard one barking on the day of the bite. The door to defendants’ home had a mail slot in it, with an outer and inner flap. Plaintiff reached into the slot to push open the inner flap to prevent the flap from damaging the mail he was delivering. Plaintiff was bitten by one of defendants’ dogs on his right hand as he pushed mail into the slot. [3]

Plaintiff testified that defendants’ dogs would sometimes become excited when he delivered mail to the home. He would bundle the defendants’ mail and place it between their screen door and front door when he knew the dogs were present. He also testified that he could insert mail inside the slot without placing his hand inside the house to hold the inner flap open and had done so in the past.[4]

Provocation of the dog was a major issue at trial. The trial court denied plaintiff’s Motion for Directed Verdict, which argued there was no evidence of provocation. The jurors were instructed on the definition of provocation and subsequently returned a verdict for the defendants.[5]

Appellate court analysis.

In order for the plaintiff to recover under the Animal Control Act (herein Act), he must prove:

  1. Injury caused by the defendants’ dogs;
  2. Lack of provocation of the dog;
  3. That he was conducting himself in a peaceable manner;
  4. That he was in a place where he had the legal right to be.[6]

Plaintiff argued that placing his hand inside the mail slot could not be considered provocation as a matter of law.[7] The Act itself does not define provocation.[8] The focus of provocation findings is from the dog’s perspective.[9]

The court in Claffey noted that Claffey had breached an enclosure by reaching through the mail slot. Claffey would have been protected from the dogs and not come into contact with them, had he not reached through the slot. Further, the court found it pertinent that the interior flap was spring loaded, requiring Claffey to take the deliberate action of pushing it open and reaching into the house.[10] Claffey’s actions were not mere external stimulus to the dogs, rather, his actions introduced stimulus into the dog’s separate environment that exposed him to their reaction.[11]

The Claffey court analogized the facts of this case to a situation where a person is bitten when reaching into a fence or enclosure when they know or should know that a dog may be confined therein. The Claffey court noted that numerous courts have found that such action barred recovery from resulting injuries in such cases.[12]

A reasonable jury could find that a normal dog would perceive a hand entering its enclosed environment to be an intrusion and react by biting. Hence, a reasonable jury could find that the dog in this case was provoked. [13]

The court further recognized that plaintiff’s fault in causing the provocation was a relevant consideration. Plaintiff’s actions undermined measures that provided protection to him from the subject animals, i.e., the door. [14] Further, the legislative intent behind Section 16 of the Act, which provides the avenue for recovery, is to protect people who may not have any way of avoiding or knowing the dangers provided by the animal.[15]

Perhaps the most interesting discussion from this case is the court’s description of the actions of the owner and dog prior to the plaintiff opening the mail slot, “the Huntleys secured their dog against contact with outsiders by keeping it inside their home. ‘Securing dogs is what is expected of a dog owner – it protects the dogs and it protects the public.’ [citation] But by breaching that security, Claffey encroached on the dog’s isolated environment and exposed himself to risk of harm.”[16] In essence, Claffey had to go to the dog in order to be bitten.[17]

Practical effect of case.

This case helps clarify the concept of provocation of an animal under the Act. Provocation under the Act is broader than simply beating or taunting an animal. Rather, it encompasses a full evaluation of the facts underlying an injury caused by an animal. Relevant facts include the location of the dog, the location of the plaintiff, plaintiff’s knowledge of the risk posed by the animal, the plaintiff’s actions resulting in the injury, specifically exposing themselves to the animal, and the proportionality of the animal’s response to the stimulus giving rise to the provocation defense.

Generally, whether provocation exists will be a question of fact for the jury. Attorneys and claims adjusters should pay special attention to the underlying facts of the case including those described in the preceding paragraph to determine whether a provocation defense exists and the viability of any such defense as trial. If a jury is convinced that provocation occurred, then a defense may likely be the result of the jury’s verdict.

 

[1] 510 ILCS 5/16;

[2] Claffey v. Huntley, 2021 IL App(1st) 191938, ¶3;

[3] Claffey at ¶3;

[4] Claffey at ¶5;

[5] Claffey at ¶¶8-10;

[6] Claffey at ¶15, internal citation omitted;

[7] Claffey at ¶16;

[8] Claffey at ¶19;

[9] Claffey at ¶27;

[10] Claffey at ¶20;

[11] Claffey at ¶21;

[12] Claffey at ¶22;

[13] Claffey at ¶27;

[14] Claffey at ¶26;

[15] Claffey at ¶26.

[16] Claffey at ¶27, internal citation omitted;

[17] Claffey at ¶27

By Jason G. Schutte

Synopsis: 

The Illinois General Assembly recently enacted Public Act 102-0006. The Public Act is of concern to insurers, claims adjusters and defense attorneys because it implements pre-judgment interest in the State of Illinois. We have broken down the basics of the law below for your quick reference in consideration of any pending cases that you have or upcoming cases that you may incur within the jurisdiction of the State of Illinois:

  1. Effective date.

The statute is effective July 1, 2021.

  1. Applicability.

The statute provides pre-judgment interest to personal injury and wrongful death claims arising from negligence, willful and wanton misconduct, intentional misconduct or strict liability. Pre-judgment interest will not accrue for punitive damages, sanctions, statutory attorneys’ fees or statutory costs set forth within any judgment obtained by the plaintiff.

  1. Pre-judgment interest accrual date.

Pre-judgment interest will begin to accrue on the date a cause of action is filed. In any personal injury or wrongful death action that has occurred prior to July 1, 2021, pre-judgment interest will begin accruing on the latter of the date that the cause of action is filed or the effective date of enactment of the law, July 1, 2021. To provide an example, if a lawsuit has already been filed before July 1, 2021, pre-judgment interest begins accruing on on July 1, 2021. If an injury occurs on June 1, 2021 and a lawsuit is not filed until August 1, 2021, pre-judgment interest begins to accrue on August 1, 2021.

  1. Tolling period for pre-judgment interest.

Pre-judgment interest is tolled in the event that plaintiff files a voluntary dismissal of their lawsuit. The tolling period extends from the date the action is voluntarily dismissed until the date that the action is re-filed.

  1. Amount of statutory interest.

6% per annum, simple interest.

  1. Limiting actions to interest exposure.

Pre-judgment interest exposure can be limited by the highest written settlement offer made by the defendant within 12 months of July 1, 2021 for pending cases or 12 months after filing the action. If the plaintiff rejects the highest offer, the pre-judgment interest is limited to interest on the amount that any judgment obtained exceeds the highest settlement offer. If a judgment is equal to or less than the amount of the highest written settlement offer, no pre-judgment interest shall be added to the judgment.

  1. Cap on interest.

Pre-judgment interest is not allowed to accrue for longer than five years.

  1. Applicability to governmental entities.

The pre-judgment interest statute does not apply to local government, school districts, community college districts nor other governmental entities.

SUMMARY AND ANALYSIS OF STATUTE

The aforementioned statute will certainly be utilized by plaintiffs’ attorneys as leverage during settlement negotiations. Obviously, it will have its largest effect in cases with a theoretical high exposure. Most likely it will prove most useful when a case has questions of liability but verifiable and potentially high damages.

We recommend that insurers and defendants strongly consider extending an offer within the higher end of their evaluation of the value of the case within the 12 month period after the filing of the cause of action (or within 12 months of July 1, 2021 for pending actions) to cap any pre-judgment interest concerns. Regarding the smaller value cases, the pre-judgment interest statute most likely will not affect the evaluation of the case or how the defense chooses to handle the matter. However, it is certainly worth noting and a concern for the defense bar, claims adjusters and insurers going forward.

Please contact us regarding your thoughts and if you have any questions on this particular statute.

By Jason G. Schutte

 Synopsis

There is an ever-growing industry of experts offering to provide services in personal injury and casualty litigation based on evaluation of property damages and medical charges taken from analysis programs and/or statistical data. These opinions are often derived from big data gathered from various insurance companies. This fact creates major questions and problems for litigants and attorneys in establishing an evidentiary foundation to admit these opinions into evidence.

Underlying facts of case:

Verci v. High is a personal injury case wherein plaintiff asserted that she was injured as a result of the negligence of the defendants. The majority of plaintiff’s medical charges arose from her treatment with Dr. Kube and related entities. The major issue of contention in the case was the reasonable value of the medical services provided by Dr. Kube.[i]

Plaintiff claimed over $1 million in charges for her medical care and treatment. Approximately $800,000.00 arose from her treatment with Dr. Kube and related medical entities.[ii]

The Tazewell County, Illinois trial court entered an Order prohibiting the defendants from cross-examining Dr. Kube and associated medical entities about the cash value advertised for the medical care they provided. The trial court allowed the defendants’ billing expert to testify regarding her opinion about the reasonable care of the medical services provided by Kube.[iii]

Defendants presented an expert to testify that the usual, customary and reasonable total for the charges incurred were approximately $148,118.00. The expert determined that the charges submitted by Dr. Kube were 547% higher than cash prices that Kube’s entities had advertised on line.[iv]

Defendants’ expert testified that she relied upon three databases in determining the reasonable value of the medical services provided, including the (1) FAIR health, (2) Optum, which utilizes FAIR health data and (3) American Health Directory. FAIR was the primary database that she used.[v]  

Defendants’ expert did not make any effort to obtain information from individual medical providers or outpatient centers to determine the value of their charges.[vi]

FAIR Health obtains all of its data from charges received by insurance companies that have been charged by medical providers. FAIR then categorizes the charges geographically and creates a range of the charges.[vii]

Defendant’s expert assumed that Optum and FAIR correctly performed their data/statistical analysis. She did not review the raw data that Optum or FAIR obtained. She did review their statistical analysis.[viii]

The certified questions that the court issued were:

(1)“Did the trial court err in denying defendants’ right to cross-examine Dr. Kube and his associated medical entities with prices advertised by Dr. Kube and the same associated medical entities as prices that represent the reasonable value for the services rendered[?]”

(2)“Did the trial court err in allowing defendants’ billing expert, Rebecca Reier, to testify over plaintiff’s objection when the defendants’ expert relies upon geographically zipcoded information collected by national databases rather than personally obtained medical billing comparisons[?]”[ix]

Appellate Court Ruling

Admissibility of Advertised Cash Prices:

The Appellate Court determined that the trial court erred in prohibiting the defendants from cross-examining plaintiff’s treating physician, Dr. Kube, about the cash prices that his medical entities advertised for their services. The court found that the range of fees could be charged for services plaintiff received was admissible and not barred under the collateral source rule. Hence, the defendants should have been allowed to cross-examine Kube regarding the advertised cash prices.[x]  

Admissibility of Reier’s Testimony:

The Appellate court noted that defendants’ expert relied primarily on the FAIR health database. They also noted that the information contained therein is no evidence of what other area providers charge for the services plaintiff received because the data therein came from unknown numbers of insurance companies rather than healthcare providers. Additionally, the databases were used to determine reimbursement rates rather than the reasonableness of provider charges. Additionally, the data in the database was incomplete.

The court further emphasized that the FAIR database does not include information for amounts charged to uninsured individuals hence it was not a true representation of what medical providers charge. Likewise, defendants’ expert could not identify any medical providers whose charges were included in the FAIR health database nor could she state whether any specific provider’s charges were included in the database. The Appellate court emphasized that expert witnesses are not allowed to testify that providers’ medical charges are unreasonable based upon reimbursement rates as those are irrelevant and violate the collateral source rule.[xi]  

Practical Effect of Case

The major problems with the opinions from the expert in this case were that they were based on unverifiable information that did not come from the entities that would actually provide the service being examined. Also, the data examined (reimbursement rate) could not be used to determine a reasonable charge for the treatment. Likewise, the data did not include all types of charges, such as charges to uninsured patients.

Whereas, the evidence of the cash charges from Dr. Kube was admissible because it was verifiable and from a geographic source that provides the type of care at issue. The key to admissibility of such an opinion is whether the data from which the opinion is based can be verified. Is it from a source that actually provides the services being evaluated (for instance, a carpenter vs a warranty company)? Does it include all charges available for that service (for instance reduced rates for members versus nonmembers)?

I have seen expert witnesses presenting opinions based on big data and information taken from various data bases and computer programs in many different scenarios. These have included lost earning capacity, cost of repairing property damaged by water/fire, value of personal property damaged by fire and future medical specials, to name a few.

I have always believed that it is truly difficult to establish a proper foundation to admit opinions based on this big data into evidence at trial. I believe this case provides an excellent road map to contest opinions that are based on this such data. Of course, the trial judge will have wide discretion regarding the admission of such opinions. At a minimum, this case provides a good basis to attack any such opinion during the discovery and trial phase of litigation.

Attorneys and claims professionals presenting opinions based on this type of data should carefully scrutinize their expert witness and whether they can provide the basic testimony to convince the trial court that the underlying information is sufficiently reliable to admit the opinion into evidence. If it is not, then you need to build up the opinion/ witness or, get a new witness.

Attorneys and claims professionals opposing such opinions should closely review any and all computer programs, data sources and investigation performed by the expert to find any basis to criticize and discredit the opinions as based on unverifiable or inapplicable data. If justified, you may be able to exclude or limit such testimony via a Motion in Limine.

 

[i] Verci v. High et.al., 2019 IL App (3d) 190106-B;

[ii] Id. at par. 4;

[iii] Id. at par. 2;

[iv] Id. at par. 5;

[v] Id. at par. 6;

[vi] Id. at par. 10;

[vii] Id. at par. 7;

[viii] Id. at par. 9;

[ix] Id. at par. 13;

[x] Id. at par. 25;

[xi] Id. at par. 32;

By Jason G. Schutte

 Synopsis

There is an ever-growing industry of experts offering to provide services in personal injury and casualty litigation based on evaluation of property damages and medical charges taken from analysis programs and/or statistical data. These opinions are often derived from big data gathered from various insurance companies. This fact creates major questions and problems for litigants and attorneys in establishing an evidentiary foundation to admit these opinions into evidence.

Underlying facts of case:

Verci v. High is a personal injury case wherein plaintiff asserted that she was injured as a result of the negligence of the defendants. The majority of plaintiff’s medical charges arose from her treatment with Dr. Kube and related entities. The major issue of contention in the case was the reasonable value of the medical services provided by Dr. Kube.[i]

Plaintiff claimed over $1 million in charges for her medical care and treatment. Approximately $800,000.00 arose from her treatment with Dr. Kube and related medical entities.[ii]

The Tazewell County, Illinois trial court entered an Order prohibiting the defendants from cross-examining Dr. Kube and associated medical entities about the cash value advertised for the medical care they provided. The trial court allowed the defendants’ billing expert to testify regarding her opinion about the reasonable care of the medical services provided by Kube.[iii]

Defendants presented an expert to testify that the usual, customary and reasonable total for the charges incurred were approximately $148,118.00. The expert determined that the charges submitted by Dr. Kube were 547% higher than cash prices that Kube’s entities had advertised on line.[iv]

Defendants’ expert testified that she relied upon three databases in determining the reasonable value of the medical services provided, including the (1) FAIR health, (2) Optum, which utilizes FAIR health data and (3) American Health Directory. FAIR was the primary database that she used.[v]  

Defendants’ expert did not make any effort to obtain information from individual medical providers or outpatient centers to determine the value of their charges.[vi]

FAIR Health obtains all of its data from charges received by insurance companies that have been charged by medical providers. FAIR then categorizes the charges geographically and creates a range of the charges.[vii]

Defendant’s expert assumed that Optum and FAIR correctly performed their data/statistical analysis. She did not review the raw data that Optum or FAIR obtained. She did review their statistical analysis.[viii]

The certified questions that the court issued were:

(1)“Did the trial court err in denying defendants’ right to cross-examine Dr. Kube and his associated medical entities with prices advertised by Dr. Kube and the same associated medical entities as prices that represent the reasonable value for the services rendered[?]”

(2)“Did the trial court err in allowing defendants’ billing expert, Rebecca Reier, to testify over plaintiff’s objection when the defendants’ expert relies upon geographically zipcoded information collected by national databases rather than personally obtained medical billing comparisons[?]”[ix]

Appellate Court Ruling

Admissibility of Advertised Cash Prices:

The Appellate Court determined that the trial court erred in prohibiting the defendants from cross-examining plaintiff’s treating physician, Dr. Kube, about the cash prices that his medical entities advertised for their services. The court found that the range of fees could be charged for services plaintiff received was admissible and not barred under the collateral source rule. Hence, the defendants should have been allowed to cross-examine Kube regarding the advertised cash prices.[x]  

Admissibility of Reier’s Testimony:

The Appellate court noted that defendants’ expert relied primarily on the FAIR health database. They also noted that the information contained therein is no evidence of what other area providers charge for the services plaintiff received because the data therein came from unknown numbers of insurance companies rather than healthcare providers. Additionally, the databases were used to determine reimbursement rates rather than the reasonableness of provider charges. Additionally, the data in the database was incomplete.

The court further emphasized that the FAIR database does not include information for amounts charged to uninsured individuals hence it was not a true representation of what medical providers charge. Likewise, defendants’ expert could not identify any medical providers whose charges were included in the FAIR health database nor could she state whether any specific provider’s charges were included in the database. The Appellate court emphasized that expert witnesses are not allowed to testify that providers’ medical charges are unreasonable based upon reimbursement rates as those are irrelevant and violate the collateral source rule.[xi]  

Practical Effect of Case

The major problems with the opinions from the expert in this case were that they were based on unverifiable information that did not come from the entities that would actually provide the service being examined. Also, the data examined (reimbursement rate) could not be used to determine a reasonable charge for the treatment. Likewise, the data did not include all types of charges, such as charges to uninsured patients.

Whereas, the evidence of the cash charges from Dr. Kube was admissible because it was verifiable and from a geographic source that provides the type of care at issue. The key to admissibility of such an opinion is whether the data from which the opinion is based can be verified. Is it from a source that actually provides the services being evaluated (for instance, a carpenter vs a warranty company)? Does it include all charges available for that service (for instance reduced rates for members versus nonmembers)?

I have seen expert witnesses presenting opinions based on big data and information taken from various data bases and computer programs in many different scenarios. These have included lost earning capacity, cost of repairing property damaged by water/fire, value of personal property damaged by fire and future medical specials, to name a few.

I have always believed that it is truly difficult to establish a proper foundation to admit opinions based on this big data into evidence at trial. I believe this case provides an excellent road map to contest opinions that are based on this such data. Of course, the trial judge will have wide discretion regarding the admission of such opinions. At a minimum, this case provides a good basis to attack any such opinion during the discovery and trial phase of litigation.

Attorneys and claims professionals presenting opinions based on this type of data should carefully scrutinize their expert witness and whether they can provide the basic testimony to convince the trial court that the underlying information is sufficiently reliable to admit the opinion into evidence. If it is not, then you need to build up the opinion/ witness or, get a new witness.

Attorneys and claims professionals opposing such opinions should closely review any and all computer programs, data sources and investigation performed by the expert to find any basis to criticize and discredit the opinions as based on unverifiable or inapplicable data. If justified, you may be able to exclude or limit such testimony via a Motion in Limine.

 

[i] Verci v. High et.al., 2019 IL App (3d) 190106-B;

[ii] Id. at par. 4;

[iii] Id. at par. 2;

[iv] Id. at par. 5;

[v] Id. at par. 6;

[vi] Id. at par. 10;

[vii] Id. at par. 7;

[viii] Id. at par. 9;

[ix] Id. at par. 13;

[x] Id. at par. 25;

[xi] Id. at par. 32;

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