Can Physical Trauma Cause Fibromyalgia?

You have probably seen the ads recently on television discussing medications used to treat fibromyalgia.  Public awareness of the disease has increased over the last decade.  Initially regarded as a “garbage can” diagnosis, the medical community has begun to recognize it not only as a real disease, but one with often devastating consequences.  Additionally, much debate has now centered on whether fibromyalgia can be caused by the trauma sustained in a car accident.  What is fibromyalgia?  Can injuries sustained in a car accident cause or aggravate the condition?  Can the trauma involved in a car accident “flip the switch” for someone who is predisposed to developing fibromyalgia, but was asymptomatic prior to the car accident?

I recently litigated and settled a case at mediation where a car accident caused the onset of fibromyalgia in a middle-aged female.  She initially complained of an injury to her neck as a result of the car accident, but began to develop symptoms of fibromyalgia within a few months after the car accident.  Not surprisingly, the insurance company hired experts who claimed the woman was faking or exaggerating her symptoms for some financial or emotional benefit.  That is a typical defense in a case where the alleged injury is a chronic pain syndrome such as fibromyalgia or complex regional pain syndrome (CRPS).  Fortunately, after many depositions and a vigorous battle, the case settled at mediation for $595,000.  This was the largest settlement for a fibromyalgia case ever reported outside of Cook County.         

What is Fibromyalgia?

Fibromyalgia is a musculoskeletal disorder characterized by widespread musculoskeletal pain.  While there are many symptoms that have been affiliated with the disease, the classical symptoms aside from pain include: severe and chronic fatigue, sleep deprivation, memory loss, depression, and restless leg syndrome.  Although a disease which predominantly affects women, men can and do acquire the disorder.   

People with fibromyalgia are often described as having increased sensitivity to pain.  For a person who reports pain that is 3 out of 10 on a 10 scale, the person with fibromyalgia may experience pain that rates at an 8 or higher.  Indeed, persons who suffer from fibromyalgia have increased sensitivity to all sensory inputs.  What one may perceive as a strong odor can overwhelm someone with fibromyalgia. 

There is no easily administered diagnostic test which can confirm or rule out a diagnosis of fibromyalgia.  As a result, people with fibromyalgia often encounter persons unsympathetic to their plight because they do not understand what causes their pain.  Thus, the disease damages not only the body, but also the psyche. 

Can a Car Accident cause Fibromyalgia?

Now that the diagnosis of fibromyalgia has gained acceptance in the medical community, the new controversial question has to do with what causes the disorder.  Specifically, one of the leading questions currently surrounding the disorder is whether a car accident can cause a person to develop fibromyalgia?  While many doctors and reputable organizations (i.e. Mayo Clinic) agree that it can, insurance companies and defense firms have spent significant money and resources trying to prove the opposite conclusion.  

Of significance for fibromyalgia patients was one study conducted in 2002 which revealed a significant association between fibromyalgia and physical trauma (i.e. car accident) sustained in the 6 months before the onset of fibromyalgia symptoms.  Another study found that a person who sustained a neck injury in an accident was 13 times more likely to develop fibromyalgia than a person who sustained a lower extremity injury.  Remember the case that was discussed in the beginning of this article?  The woman’s initial injury was to her neck.

What often gets confusing is when the discussion turns to whether a car accident caused fibromyalgia versus whether a car accident made the disease symptomatic.  Fortunately for people in Illinois, the distinction does not matter.  As long as the car accident is a cause in the development of fibromyalgia, an injured person is entitled to damages for relating to the condition which resulted from the car accident.  This is significant because people affected by fibromyalgia often undergo many years of treatment and are often confronted with substantial medical bills.

If you were involved in a car accident and developed the onset of a chronic pain syndrome such as fibromyalgia, you may be overlooking an obvious cause of your symptoms.  Contact a personal injury attorney for a free consultation to determine if you have any legal right to be compensated for your injuries.  Not only is it important to obtain treatment from doctors who specialize in fibromyalgia and other pain syndromes such as complex regional pain syndrome, but also to hire a lawyer who specializes in this unique area of the law.   

How do you feel about fibromyalgia gaining general acceptance as a legitimate condition in the medical community?  Have you or anyone you know been diagnosed with fibromyalgia?  How do people react to your diagnosis?  Your questions and comments are welcome.  

The Illinois Attorney General is Hiring

I just came across the Job Opportunities section of Lisa Madigan's website.  It was last updated on March 6, 2013 and they are listing 13 separate Assistant Attorney General positions, four in Chicago, six in Springfield, and one each in Champaign, Belleville, and Carbondale.

Here is a link to the website:  http://www.illinoisattorneygeneral.gov/about/jobs/

FBI Searches NIU Police Department

The FBI served a search warrant on the NIU police department this week.  The actual subject of the investigation has not been publicly revealed, but I have read speculation that the search may related to last fall's indictments of several NIU employees who were conspiring to sell University-owned scrap metal off the books.  Or not.  It also may be related to the police chief who was fired last month.  Or the NIU police officer who was indicted for rape last month.  Or the NIU Vice President took a leave of absence today.  Or something else entirely.

Anyway, in case anyone is interested, here is a copy of the federal search warrant that I obtained from the Justice Cafe twitter account (@facsmiley).

  FBI search warrant at NIu by   Daily Chronicle

Bankruptcy Litigation Tip: Cost-Shifting and Offers of Judgment

This article first appeared in the December 2012 edition of the Kane County Bar Briefs.

Most clients generally wish to avoid litigation.  Bankruptcy clients, particularly, wish to have their cases resolved quickly, efficiently, and without surprises.  When litigation does arise in the bankruptcy context, debtors’ lawyers best serve their clients by creatively working to resolve the case in a cost-effective manner.  To reach that end, the bankruptcy practitioner may want to consider the cost-shifting provisions of Federal Rule of Civil Procedure 68.

Rule 68, made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7068, is intended to encourage settlement and avoid litigation.[i]  Rule 68 allows a party defending a claim to submit an offer of judgment to the other party.  If the offer is accepted, judgment is entered according to the terms offered.  If the offer is rejected, and if the plaintiff ultimately obtains a judgment less favorable than the terms of the offered judgment, the plaintiff must pay all costs incurred by the defendant following the offer. 

I.                   Does Rule 68 Apply?

Bankruptcy litigation comes in two varieties: adversary proceedings and contested matters.  Adversary proceedings (or "adversaries") are separate lawsuits brought in bankruptcy court.  Adversaries are commenced by filing a complaint.[ii]  They can then proceed through traditional motion practice, the full gamut of discovery, and, if not settled, a trial.  There are ten specific categories of cases that must be brought as adversary proceedings,[iii] including proceedings to recover money or property from a debtor,[iv] to determine the validity or priority of a lien,[v] or to object to discharge.[vi]

Contested matters, on the other hand, must be brought by motion.[vii]  Contested matters are similar to adversaries in that discovery can be lengthy and expensive.  For instance, interrogatories, production requests, physical and mental examinations of persons, requests to admit, and depositions are all available to parties in contested matters, just as they are in adversaries.[viii]  Money judgments can also be entered following a contested matter.[ix]  

As you can see, costs can quickly skyrocket during discovery in both types of proceedings.  Due to the similarities between the two, litigants need to figure out exactly which rules govern their specific case.  Rule 68 is only available in adversary proceedings by way of Rule 7068.  In contested matters, Rule 9014(c) specifies which of the rules in the 7000 series apply.  Rule 7068 is not listed in that section.  That does not mean that the defendant cannot offer a judgment as part of a settlement package, but the cost-shifting provisions of Rule 68 will not apply if that offer gets rejected.

However, Rule 9014(c) does state that “unless the court orders otherwise, the following rules shall apply…”  So, if the defendant feels that his offer is a reasonable one, I guess that it is possible to move the court for leave to propound a Rule 68 offer of judgment in a contested matter in order to place some risk on the plaintiff for rejecting the offer.

II.        Procedures and Application

           

            Rule 68 is pretty straightforward.[x] An offer of judgment can only be made by the defendant.[xi]  The offer must be in writing.[xii]  The offer must be for a specified dollar amount or specified property.[xiii]  In addition to the principal settlement amount, the offer must include an offer to pay costs accrued by the plaintiff prior to receipt of the offer of judgment.[xiv]  However, the offer’s silence on costs does not invalidate the offer and will result in a recovery of costs already incurred by the plaintiff in addition to the amount offered by defendant.[xv]

            The plaintiff has 14 days after receipt to accept the offer of judgment.[xvi]  If the offer is accepted, either party may then file the offer and notice of acceptance with the clerk.[xvii]  The clerk must then enter judgment.[xviii]  A prudent practitioner would probably place a call to the Judge’s clerk to inform him or her that the case is settled and to inquire if any other procedures should be followed.

The cost-shifting provisions of the Rule come into play when an offer of judgment is not accepted.  If the judgment that the plaintiff eventually obtains is not more favorable than the unaccepted offer, the plaintiff must pay the costs incurred by the defendant after the offer was made.[xix]  In cases involving money damages only, it is usually not too difficult to determine whether a party has received a judgment “more favorable” than the unaccepted offer.  However, money damages need not be the only measure of whether a plaintiff has obtained a more favorable judgment under Rule 68.  For instance, the value of an injunction granted can be compared to the value of a prior monetary offer. [xx]

Costs allowable under Rule 68 are limited to costs allowed under Federal Rule of Civil Procedure 54 (“Judgment; Costs”) and 28 U.S.C. 1920 (“Taxation of Costs”).[xxi]  Those costs have been found to include filing and appearance fees,[xxii] service of process,[xxiii] court reporter fees,[xxiv] deposition transcripts necessarily obtained for use in the case,[xxv] witness and expert witness per diems,[xxvi] photocopies,[xxvii] compensation of interpreters,[xxviii] copying and collating exhibits and graphics for trial,[xxix] and even the costs of hiring computer technicians to assist in the e-discovery process when responding to discovery requests propounded by plaintiff.[xxx]

In certain circumstances, attorneys’ fees are considered costs under Rule 68.  Where a specific statute includes attorneys’ fees in its definition of costs, those fees are recoverable under Rule 68.  The United States Supreme Court has held that attorneys’ fees are recoverable as costs under The Civil Rights Attorney’s Fees Awards Act of 1976[xxxi] and the Eleventh Circuit has held that fees are recoverable as costs under The Copyright Act.[xxxii]  I am not aware of fees being awarded under Rule 68 in the bankruptcy context, but the possibility is something to keep in mind because the inclusion of fees in costs can really skew the settlement analysis.

---

[i] In re Alvarez, 261 B.R. 742, 744 (Bankr. M.D. Fla. 2000).

[ii] Fed. R. Bankr. P. 7003

[iii] Fed. R. Bankr. P. 7001

[iv] Fed R. Bankr. P. 7001(1)

[v] Fed. R. Bankr. P. 7001(2)

[vi] Fed. R. Bankr. P. 7001(4)

[vii] Fed. R. Bankr. P. 9014

[viii] Fed. R. Bankr. P. 9014(c)

[ix] Id.

[x] Rule 68.  Offer of Judgment.

(a) Making an Offer; Judgment on an Accepted Offer.  At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.  If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service.  The clerk must then enter judgment.

(b) Unaccepted Offer.  An unaccepted offer is considered withdrawn, but it does not preclude a later offer.  Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability is Determined.  When one party’s liability to another has been determined but the extent of the liability remains to be determined by further proceedings, the party held liable may make an offer of judgment.  It must be served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of liability.

(d) Paying costs After an Unaccepted Offer.  If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

[xi] Fed. R. Civ. Pro. 68(a)

[xii] Driver Music Co., Inc. v. Commercial Union Ins. Companies, 94 F.3d 1428, 1432 (10^th Cir. 1996).

[xiii] Marryshow v. Flynn, 986 F.2d 689, 691 (4^th Cir. 1993).

[xiv] Fed. R. Civ. Pro. 68(a)

[xv] See McCain v. Detroit II Auto Finance Center, 378 F.3d 561 (6^th Cir. 2004).

[xvi] See Perkins v. U.S. West Communications, 138 F. 3d 336 (8^th Cir. 1998).

[xvii] Fed. R. Civ. Pro. 68(a)

[xviii] Id.

[xix] Fed. R. Civ. Pro. 68(d)

[xx] Andretti v. Borla Performance Industries, Inc., 426 F.3d 824, 837 (6^th Cir. 2005).

[xxi] See Thomas v. Caudill, 150 F.R.D. 147 (N.D. Ind. 1993).

[xxii] 28 U.S.C. 1920(1)

[xxiii] In re O’Callaghan, 304 B.R. 887, 891 (Bankr. M.D. Fla. 2003).

[xxiv] Id.

[xxv] 28 U.S.C. 1920(2)

[xxvi] 28 U.S.C. 1920(3)

[xxvii] 28 U.S.C. 1920(4)

[xxviii] 28 U.S.C. 1920(6)

[xxix] Haroco, Inc. v. Am. Nat’l Bank & Trust Co., 38 F.3d 1429, 1441 (7^th. Cir. 1994)

[xxx] Glenn Tibble et al. v. Edison International et al., 2011 U.S. Dist. LEXIS 94995 (C.D. Cal 2011).

[xxxi] Marek v. Chesny, 473 U.S. 1, 9 (1985).

[xxxii] Jordan v. Time, Inc., 111 F.3d 102, 105 (11^th Cir. 1997).

Congratulations to Tim Conklin and Tait Lundgren

I just received the announcement from Foster & Buick Law Group, LLC that Tim Conklin and Tait Lundgren have become partners in the firm. Congratulations guys.

Maximizing Your Underinsured Motorist Coverage in Illinois

Most people do not know that the minimum insurance coverage required of drivers in Illinois is $20,000 per person/$40,000 per accident.  Other people may have heard of this, but don’t exactly know what it means.  Failure to really understand minimum coverage until it’s too late can leave an injured motorist in a position where they have to pay for substantial vehicle repairs and outrageous medical expenses out of their own pocket.  This can lead to the loss of thousands of dollars because of an accident caused by another’s negligence.  Is it fair?  No.  Does it happen?  Absolutely.

Understanding what the policy limits numbers mean is the first step in understanding the various types of coverage.  In the example above, $20,000 per person means that the most the at-fault driver’s insurance company would have to pay to a single person injured due to the negligence of its insured is $20,000 for a particular accident.  The $40,000 per accident limit applies to the maximum the insurance company will ever be required to pay for an accident no matter how many people were injured and no matter how significant the injuries.  For example, assume 4 people were injured due to the negligence of a driver with this type of policy.  Every person in the wreck had treatment consisting of over $30,000 in medical bills.  No one person of the 4 may receive more than $20,000 for their injuries (inclusive of medical bills).  Additionally, the maximum the insurance company is required to pay out to all 4 of the injured parties is a TOTAL of $40,000! 

Fortunately, many of us purchase what is known as underinsured motorist coverage.  Like uninsured motorist coverage, underinsured coverage puts your own insurance company in the shoes of the negligent party when the negligent party does not have enough insurance coverage to pay for an accident victim’s injuries.  Typical underinsured motorist policies are written with limits from as low as a minimum of $25,000 to a maximum of anywhere from $300,000 to $500,000.  Additionally, some people choose to purchase a PLUP or personal liability umbrella policy.  PLUP coverage picks up where the regular auto insurance policy leaves off.  For instance, assume you have an auto injury with damages that are equivalent to $1,000,000.  The person that caused the accident has an auto policy with limits of $300,000.  You can recover the $300,000 from the auto carrier and attempt to recover the remaining $700,000 from the PLUP policy if the at-fault driver has one. 

Many clients ask why they must pursue their own insurance when they were not at fault.  It is a great question and one with a variety of answers.  One important reason why you should is because you are paying for these premiums in case the exact scenario above occurs.  If you pay for these premiums for the rest of your life and choose not to access them even when you need them, the insurance company enjoys a substantial windfall.  The other question that is often asked is why not go after the at-fault party individually and garnish his or her wages.  This is often a hopeless endeavor which results in chasing an individual and his or her assets across the country in order to satisfy the judgment.  Furthermore, if the judgment is large enough, the person may simply file bankruptcy and you will be lumped in with other creditors.   

There are many procedures that one must follow in pursuing an uninsured or underinsured motorist claim.  One of the first is the demand of arbitration.  The arbitration process, rather than a jury trial, is the means by which an uninsured or underinsured motorist claim is resolved if settlement is not feasible.  Some insurance carriers have written a time limitation within its policy which acts as a statute of limitations.  Under this particular policy provision, if arbitration is not demanded within the specified time period, usually 1-2 year from the date of accident, your uninsured or underinsured motorist claim will be extinguished. 

If you reach an agreement to settle for the policy limits of the negligent party’s insurance carrier, you must get the permission from the underinsured motorist carrier to accept the settlement.  Failure to do so will likely extinguish your claim.  Moreover, you must be careful not to sign away your rights to the underinsured motorist claim when settling and signing a release with the at-fault carrier.  Most releases release EVERYONE!  Many of the releases I review in such cases require a substantial amount of amendments and additional language protecting the underinsured motorist claim.  Finally, one must be cognizant of the set-off that an underinsured motorist carrier is entitled to from the monies already received from the at-fault party. 

With any type of case, it is always best to engage in a free consultation with an attorney who practices plaintiff personal injury law so that you do not do anything to jeopardize your claim.  In the case of the various inner workings of uninsured and underinsured motorist claims, this is especially true.

All HOA and Eviction Lawyers Should Read This Case

One of the more powerful and least understood provisions of the Forcible Entry and Detainer statute allows condo associations and certain other community interest associations to evict homeowners from their units for the non-payment of assessments.  The association can then place a tenant into the unit and can apply the rental proceeds to the homeowner's delinquent assessment balance.  

There are a ton of practical considerations if you ever find yourself (or your client) on either side of this equation.  When can the homeowner get back into his house?  What happens to the tenant with a one-year lease if the homeowner pays off his balance with a lump sum?  What fees can be added onto the homeowner's balance after he is evicted?  Lots of questions that would take a lot of research to answer.

Fortunately, the 1st District Appellate Court just issued one of the most thorough opinions that I have read on the subject.  There are dozens of great nuggets in this case for lawyers to use when representing the association or the homeowner.  The Court even spends the last four pages of the opinion answering procedural questions that weren't even addressed on appeal, but that the Court thought needed to be explained anyway.  

The case is a must read for condo/eviction lawyers.  Here is the link:

Gotham Lofts Condominium Association v. Kaider, 2013 IL App (1st) 120400.

City of Rockford Seeks In-House Employment Lawyer

The City of Rockford has a mid-level job opening in its law department.  The City requires five years' experience, but the job posting says that "any satisfactory equivalent combination of experience" may be substituted for the required experience.  Sounds like they're asking people to argue why they're qualified.  

This is a very attractive career opportunity for someone with the right experience.  I copied the entire job posting below.  There is contact information at the bottom.

"Senior Lawyer - Labor 

Experienced attorney comparable to mid-level associate through junior partner in private sector law firms.  

The City of Rockford is seeking qualified applicants for in-house counsel to focus on all areas of employment law including EEOC, FMLA, Worker's Compensation, employee relations and collective bargaining. Primary responsibilities include the management, coordination and participation in the defense of grievances, arbitrations, claims and lawsuits asserted against the City of Rockford. This position may also provide support for various city council committees. 

Requirements: Graduation from an accredited school of law and five years' experience in prosecuting municipal cases. Any satisfactory equivalent combination of experience and training which ensures the ability to perform the work may be substituted for the required experience. Must be a licensed member in good standing of the Illinois Bar. Starting Salary $67,204.80 / DOQ.  

Applications and resumes can either be dropped off or mailed to: City of Rockford Human Resources Department, 425 E. State St., Rockford, IL 61104 or emailed to HumanResources@Rockfordil.gov. Applications can also be faxed to 815-967-6924. Please visit the employment page of our web site, www.rockfordil.gov for more information.  

The City of Rockford is an equal opportunity employer."

Casey Anthony Filed Bankruptcy.

Casey Anthony filed Chapter 7 bankruptcy on Friday, January 25, 2013. The Northern Law Blog has obtained an exclusive copy of her bankruptcy petition.  (Well, kind of...I found it on the internet.)  The petition is pretty interesting.  Casey discloses zero income.  She says that she's been unemployed for four years.  She also lists zero monthly expenses.  No rent, no utilities, no car payment, nothing.  Also, the lawyer who filed the case provided is representing her for free.  

She discloses nearly $1 million in debt, but the actual number is a lot higher.  More than half of her debts are listed as an "unknown" value.  Her largest creditor is her former lawyer, Jose Baez, the guy who who got her acquitted of murder charges. She owes him $500,000.  I hope his business picked up after he won that case.

There was one other curious aspect that I wanted to point out.  DePaul University College of Law is listed as a creditor with an "unknown" amount of debt.  DePaul's debt is described as "consulting fees."  I don't remember hearing about their involvement during that case.  I wonder if any students worked on that case?  

The really interesting question, however, is who has standing under Florida law to object to Casey Anthony's discharge on behalf of the deceased minor child.  The estate of the deceased child would have to prove that Casey Anthony caused a willful and malicious injury to the decedent.  If so, the estate would be entitled to a cut of the future income of Casey Anthony, if any.

Anyway, HERE is a link to the petition and schedules if you want to check them out.