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Representative Cases: Prof. Edward J. Kionka
Appeals
Following
is a cross-section of the several hundred cases in which Prof. Kionka
has been counsel or co-counsel on appeal. A complete list is available
on request.
Amicus Curiae Briefs
Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997).
Prof. Kionka's amicus curiae brief on behalf of Illinois State Federation
of Labor & C.I.O. and Ironworkers' District Council of Greater
Chicago addressed the issues on which the Illinois Supreme Court
held the Civil Justice Reform Amendments of 1995 (also known as
the "1995 Tort Reform Act") unconstitutional.
Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443, 266 N.E.2d
897 (1970). Prof. Kionka's amicus curiae brief on behalf of the
American Trial Lawyers Association argued that whole blood was a
"product" for purposes of applying rules of strict product liability;
the Illinois Supreme Court agreed.
Prof. Kionka has also filed amicus curiae briefs on behalf of the
American Trial Lawyers Association in the United States Supreme
Court (Norfolk & Western Ry. v. Liepelt, 444 U.S. 490 (1980);
Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254 (1971)), and in
the Minnesota Supreme Court (Ferguson v. Northern States Power Co.,
307 Minn. 26, 239 N.W.2d 190 (1976).
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Consumer Class Actions
Avery v. State Farm Mut. Auto. Ins. Co., 321 Ill. App. 3d 269, 746
N.E.2d 1242 (5th Dist. 2001), rev'd, 216 Ill. 2d 100, 835 N.E.2d
801 (2005). Nationwide class action against automobile insurer for
breach of contract and consumer fraud by failing to pay for original
equipment manufacturer parts as promised; Appellate Court affirmed
judgment of $1.05 billion in favor of 4.75 million class plaintiffs;
Prof. Kionka co-authored class plaintiffs' brief and was one of
the two lawyers who argued orally in the Appellate Court. Judgment
reversed by the Illinois Supreme Court.
Price v. Philip Morris, Inc., 219 Ill. 2d 182, 848 N.E.2d 1 (2005).
Class action under Illinois Consumer Fraud Act based on misrepresentations
concerning "light" cigarettes. Prof. Kionka represented a law firm
in its claim for attorneys' fees. Judgment for class plaintiffs reversed by the Illinois Supreme
Court.
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Torts: Auto Cases
Archer v. Pavement Specialist, Inc., 278 F.3d 845 (8th Cir. 2002).
Wrongful death action against road repair contractor following automobile
accident in which children were killed; Prof. Kionka's brief successfully
argued that, under Arkansas law, parents could recover in full from
any one of joint tortfeasors without suing the other.
Penberthy v. Price, 281 Ill. App. 3d 16, 666 N.E.2d 352 (5th Dist. 1996). Strong Illinois public policy justifies survival of punitive damage claim against estate of deceased intoxicated motorist.
Levin v. Welsh Bros. Motor Service, Inc., 164 Ill. App. 3d 640, 518 N.E.2d 205 (1st Dist. 1987). Action for personal injuries resulting from collision between plaintiff's auto and defendant's tractor-trailer; plaintiff's judgment for $797,860 affirmed.
Buczyna v. Cuomo & Son Cartage Co., 146 Ill. App. 3d 404, 496 N.E.2d 1116 (1st Dist. 1986). Wrongful death action for death of automobile driver killed in head-on collision with truck; judgment on jury verdict of $1.5 million affirmed.
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Torts: Comparative Fault
Prewein v. Caterpillar Tractor Co., 108 Ill. 2d 141, 483 N.E.2d 224 (1985). In a case of first impression, the Illinois Supreme Court held that comparative negligence did not apply to conduct of plaintiffs bringing actions under the Illinois Structural Work Act.
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Torts: Products Liability
Connelly v. Uniroyal, Inc., 75 Ill. 2d 393, 389 N.E.2d 155 (1979), appeal dismissed & cert. denied, 444 U.S. 1060 (1980). Products liability action against Belgium tire manufacturer, manufacturer's parent company, and others for personal injuries allegedly sustained when tire failed during operation of motor vehicle. The Illinois Supreme Court held that: (1) distribution in Illinois of the tire manufacturer's products rendered the manufacturer amenable to process under statutes governing service on private corporations and personal service outside the state; (2) the manufacturer, by such contacts, purposely invoked the benefits and protections of law of Illinois so as to make it reasonable to require the manufacturer to defend action in Illinois; and (3) participation in chain of distribution of tire by manufacturer's parent company, whose trademark was printed on the tire, could render parent liable.
Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 659 N.E.2d 448 (5th Dist. 1995), second appeal, Hefner v. Owens-Corning Fiberglas Corp., 293 Ill. App. 3d 396, 688 N.E.2d 822 (5th Dist. 1997). Products liability action against manufacturer of asbestos-containing products that caused Mr. Hefner's mesothelioma. The first appeal affirmed the trial court's decision not to transfer the case under the doctrine of forum non conveniens; the second appeal affirmed the $10.5 million judgment and $1.5 million in prejudgment interest.
Illinois State Trust Co. v. Walker Mfg. Co., 73 Ill. App. 3d 585, 392 N.E.2d 70 (5th Dist. 1979). Deceased died when automobile on which he was working fell from safety jack stands; products liability action against manufacturer of jack stands. Judgment in favor of manufacturer reversed, remanded for new trial.
Charleston Nat. Bank v. International Harvester Co., 22 Ill. App. 3d 999, 317 N.E.2d 585 (4th Dist. 1974). Products liability action for wrongful death of worker killed while operating a large earth-moving vehicle; directed verdict for manufacturer reversed and remanded for new trial.
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Torts: Medical Negligence
Martin v. Marks, 80 Ill. App. 3d 915, 400 N.E.2d 711 (5th Dist. 1980). Dismissal of plaintiff's complaint in a medical negligence case reversed.
Morse v. Hardinger, 34 Ill. App. 3d 1020, 341 N.E.2d 172 (5th Dist. 1976). Medical negligence action against estate of deceased physician to recover damages for loss of vision patient suffered after taking drug prescribed by physician; judgment for defendant reversed based on improper use of deceased's deposition.
Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298, 312 N.E.2d 259 (1974). Action for personal injuries sustained by minor resulting from intramuscular injection. The Illinois Supreme Court held that a covenant not to sue the physician did not bar the action against the hospital and nurse; that the doctrine of res ipsa loquitur may be applicable to an intramuscular injection injury; and that count of complaint based on res ipsa loquitur theory of liability stated a cause of action.
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Torts:
Negligence and Proximate Cause
Owens v. Consolidation Coal Co., 144 Ill. App. 3d 88, 494 N.E.2d
274 (5th Dist. 1986). Wrongful death and personal injury action
for decedent's death resulting from drug and alcohol overdose following
his work-related injury over seven months earlier; summary judgment
for defendants affirmed.
Ozment v. Lance, 107 Ill. App. 3d 348, 437 N.E.2d 930 (5th Dist.
1982). Suit for injuries sustained by minor employee of motel when
assaulted by motel guests; summary judgment for defendant affirmed.
Moldonado
v. Creative Woodworking Concepts, Inc., 342 Ill. App. 3d 1028, 796
N.E.2d 662 (3d Dist. 2003). Employee injured by defectively designed
door; judgment for defendant reversed.
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Torts:
Other Issues
Zuber v. Illinois Power Co., 135 Ill. 2d 407, 553 N.E.2d 385 (1990).
Action by widow of electrical worker for wrongful death. Following
settlement, parties disagreed as to allocation of settlement proceeds
and liability for costs. When the case reached the Illinois Supreme
Court, plaintiff's position prevailed.
Mitchell v. White Motor Co., 58 Ill. 2d 159, 317 N.E.2d 505 (1974).
Illinois Supreme Court holds that cause of action for loss of consortium
is governed by five-year statute of limitation.
Cruthis
v. Firstar Bank, N.A., 354 Ill. App. 3d 848, 822 N.E.2d 509 (5th
Dist. 2004). Conversion action by depositor against bank for improperly
removing funds from checking account. Verdict and judgment for plaintiff affirmed.
Smith v. Lane, 358 Ill. App. 3d 1126, 832 N.E.2d 947 (5th Dist. 2005). Passenger in a horse-drawn carriage is not subject to the provisions of the Equine Activity Liability Act.
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Robinson-Patman
Act (Price Discrimination)
Reeder-Simco
GMC, Inc. v. Volvo GM Heavy Truck Corp., 374 F.3d 701 (8th Cir.
2004). Price discrimination
and violation of state franchise law. Judgment for plaintiff affirmed by Court of Appeals. Reversed by United States Supreme Court, 126 S. Ct. 860 (2006); Mr. Kionka did not participate in the U.S. Supreme Court phase of the case.
Insurance Law
Green v. J. C. Penney Auto Ins. Co., 722 F.2d 330 (7th Cir. 1983), second appeal, 806 F.2d 759 (7th Cir. 1986). Bad faith action against insurer for failure to defend and settle lawsuit against its insured; insurer liable for entire $122,500 judgment entered against its insured, interest on total amount of judgment against insured, and attorneys' fees; affirmed.
Hathaway v. Standard Mut. Ins. Co., 285 Ill. App. 3d 67, 673 N.E.2d 725 (5th Dist. 1996). Beneficiaries of underinsured motorist coverage whose injuries were not fully compensated by coverage on underinsured vehicle were entitled to recover under their UIM coverage even though bodily injury limits of underinsured vehicle were equal to or greater than underinsured motorist limits; trial court reversed.
Mid-America Bank & Trust Co. v. Commercial Union Ins. Co., 224 Ill. App. 3d 1083, 587 N.E.2d 81 (5th Dist. 1992). Action against insurer for negligence and bad faith for refusing to settle personal injury claim within the policy limits; judgment for plaintiff affirmed.
Kohlmeier v. Shelter Ins. Co., 170 Ill. App. 3d 643, 525 N.E.2d 94 (5th Dist. 1988). Breach of contract action against health insurer for refusal to pay medical bills; breach of contract portion of judgment affirmed.
Edwins v. General Cas. Co. of Wisconsin, 78 Ill. App. 3d 965, 397 N.E.2d 1231 (4th Dist. 1979). Action against liability insurer for negligent and bad faith failure to settle claim against insured within policy limits; summary judgment for insurer reversed.
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Worker Injuries: F.E.L.A. and Jones Act
Richardson v. Missouri Pacific R. Co., 186 F.3d 1273 (10th Cir. 1999). Suit by injured railroad employee under Boiler Inspection Act; judgment on jury verdict for railroad reversed; admission of irrelevant evidence was prejudicial error.
Summers v. Missouri Pacific R.R. System, 132 F.3d 599 (10th Cir. 1997). Railroad engineer and fireman injured by toxic exposure; judgment for railroad reversed; trial court abused its discretion in refusing to change scheduling order.
Huch v. S. J. Groves and Sons, Inc., 180 Ill. App. 3d 501, 536 N.E.2d 90 (5th Dist. 1989). Jones Act case; summary judgment for defendant, based on finding that plaintiff was not a "seaman," reversed.
Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill. App. 3d 94, 576 N.E.2d 918 (5th Dist. 1991). Railroad workers' F.E.L.A. action for injuries sustained while unloading bundles of ties; $175,000 judgment for plaintiff affirmed.
Reynolds v. Alton & Southern Ry. Co., 115 Ill. App. 3d 88, 450 N.E.2d 402 (5th Dist. 1983). Railroad switchman's action against employer for alleged violation of the Federal Safety Appliance Act, resulting in injury to switchman during railroad car coupling operation; judgment for plaintiff affirmed.
Montgomery v. Terminal R. R. Ass'n, 73 Ill. App. 3d 650, 392 N.E.2d 77 (5th Dist. 1979). Action by railroad terminal worker for injuries sustained in a collision between an engine and a runaway boxcar; $240,000 judgment for plaintiff affirmed.
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Worker Injuries: Construction Site
Cockrum v. Kajima Intern., Inc., 163 Ill. 2d 485, 645 N.E.2d 917 (1994). Structural Work Act case against builder by worker injured at construction site while cleaning windows; judgment for worker affirmed by Illinois Supreme Court.
Moore v. Centreville Twp. Hosp., 246 Ill. App. 3d 579, 616 N.E.2d 1321 (5th Dist. 1993), rev'd on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994). Action by construction worker injured at work site; judgment for worker affirmed. On further appeal, the Illinois Supreme Court reversed as to the allocation of damages between defendants, but allowed the plaintiff's judgment to stand without further review.
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Worker Injuries: Farm
Hanke v. Wacker, 217 Ill. App. 3d 151, 576 N.E.2d 1113 (5th Dist. 1991). Farm employee's action against employer for injuries caused by attempt to separate fighting boars at hog farm. Judgment on jury verdict in favor of employer reversed and remanded for new trial.
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Workers' Compensation
Cassens Transport Co. v. Industrial Comm'n, 218 Ill. 2d 519, 844 N.E.2d 414 (2006). Industrial Comm'n does not have jurisdiction to modify a wage differential award.
Trans World Airlines v. Industrial Comm'n, 191 Ill. App. 3d 856, 548 N.E.2d 367 (1st Dist. 1989). Workers' compensation awards to claimants who were injured while working for airline after having been transferred out of state affirmed.
Hood v. Industrial Comm'n, 158 Ill. App. 3d 81, 510 N.E.2d 908 (5th Dist. I.C. Div. 1987). Claimant sought workers' compensation; arbitrator's award reversed by Industrial Commission and Circuit Court; Appellate Court reinstated award, holding that claimant was engaged in business travel at time of accident, and his injuries arose out of and in course of his employment.
Springfield Park Dist. v. Industrial Comm'n, 49 Ill. 2d 67, 273 N.E.2d 376 (1971). Workers' compensation; Illinois Supreme Court held worker could be found to be totally and permanently disabled, even though injury confined to a single member; award for total and permanent disability affirmed.
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Criminal Appeals
(Note: Prof. Kionka
does not ordinarily accept criminal appeals. Over the course of
his career, however, he has made several exceptions, of which he
won four.)
People v. Barham, 337 Ill. App. 3d 1121, 788 N.E.2d 297 (5th Dist. 2003). Defendant's conviction for reckless homicide arising from auto accident reversed without remand, based on insufficiency of the evidence.
People v. Lee, 185 Ill. App. 3d 420, 541 N.E.2d 747 (5th Dist. 1989). Defendant's conviction for murder by arson reversed, based on ineffective assistance of counsel.
People v. Samples, 107 Ill. App. 3d 523, 437 N.E.2d 1232 (5th Dist. 1982). Defendant's conviction of armed violence and of intimidation reversed; defendant's motion for substitution of judge should have been granted.
People v. Koesterer, 44 Ill. App. 3d 468, 358 N.E.2d 295 (5th Dist. 1976). Defendant's conviction for armed robbery based on improperly obtained confession reversed.
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Family Law
In re Marriage of McGuire, 305 Ill. App. 3d 474, 712 N.E.2d 411 (5th Dist. 1999). Marriage dissolution; trial court did not err in refusing to award attorney's fees to wife.
In re Marriage of Shelton, 127 Ill. App. 3d 775, 469 N.E.2d 618 (5th Dist. 1984). Post-dissolution proceeding; trial court's modification of judgment was proper, and court properly executed deeds conveying land when ex-spouse refused to do so.
In re Marriage of Moore, 117 Ill. App. 3d 206, 453 N.E.2d 102 (5th Dist. 1983). Marriage dissolution; judgment modified.
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Decedents' Estates
In re Estate of Beck, 272 Ill. App. 3d 31, 649 N.E.2d 1011 (5th Dist. 1995). Estate executor concluded that bequest to defunct named charity lapsed, and another charity filed petition claiming that it was entitled to share of residuary estate as successor to defunct legatee; denial of petition affirmed.
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School Law
Brown v. Board of Ed., Galatia Community Unit School Dist. No. 1, 38 Ill. App. 3d 403, 347 N.E.2d 791 (5th Dist. 1976). Mandamus action by school teacher to compel school district to offer her a teaching position and reinstate her continued contractual service status; judgment for school district reversed.
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Civil Procedure
Porter v. Decature Memorial Hosp., appeal pending, Illinois Supreme Court. Issue is whether proposed amended complaint relates back under 735 ILCS 5/2-616(b).
Smith v. National Carriers, Inc., 188 Ill. App. 3d 119, 544 N.E.2d 20 (5th Dist. 1989). Trial court erred in denying plaintiffs' § 2-1401 petition for new trial based on newly-discovered evidence; reversed.
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Appellate Procedure
Bank of Herrin v. Peoples Bank of Marion, 105 Ill. 2d 305, 473 N.E.2d 1298 (1985). Appellate Court erred in denying plaintiff leave to file late notice of appeal; reversed.
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Law Practice and Fees
Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001). Jones Act case; sanction of dismissal with prejudice for alleged ethical violation by plaintiff's attorney (attempting to speak to defendant's employee) was not warranted; reversed.
Rankin ex rel. Heidlebaugh v. Heidlebaugh, 321 Ill. App. 3d 255, 747 N.E.2d 483 (5th Dist. 2001). Appellate Court reversed trial court's denial of parents' motion for sanctions against advocacy agency for developmentally disabled persons for unjustified litigation; sanctions against attorney and agency were warranted.
Norton v. Austin Nat'l Bank, 557 F.2d 1061 (5th Cir. 1977). Action to recover attorney fees pursuant to retainer contract by attorneys who represented guardian of estate of mentally incompetent in a personal injury case; district court's order denying fees reversed; fee contract, which had been approved by Texas probate court, could not be collaterally attacked.
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Trial
Consulting
Prof.
Kionka often participates as co-counsel in cases pending in federal
and state trial courts. His participation is ordinarily limited
to the legal aspects of the case - drafting pleadings and other
documents, and briefing and arguing legal issues, such as pre-trial
motions, evidentiary issues, jury instructions, post-trial motions,
and pre-appeal matters. He has also served as an expert witness
in several cases. By way of illustration, two class actions in which
he recently worked or is currently working with the lawyers representing the plaintiffs
are:
St. Clair County, et al. v. Ford Motor Co., St. Clair County Circuit
Court No. 03-L-115. Class action on behalf of a number of Illinois counties
and municipalities alleging dangerous design defects in certain
Ford Crown Victoria Police Interceptor automobiles. Settled during appeal to the Illinois Appellate Court, Fifth District.
Petska v. Illinois Central R.R. Co., Perry County Circuit Court No.
2004-L-27. Action on behalf of persons sustaining damages
as a result of a train derailment and resulting toxic chemical spill. Trial and appellate courts sustained
class certification; Illinois Supreme Court decertified class, but case continues on behalf of plaintiffs individually in circuit court.
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