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Chicago’s Lead Water Risk

flint-waterWhile the lead contamination in Flint has captured the nation, it has also raised questions about the safety of drinking water in other cities across the United States. Here in Chicago, the Chicago Tribune reports, 80% of properties in Chicago are hooked up to water service lines made of lead. Any home built before 1986 (the year lead pipes were banned) could have lead water service pipes. The Trib reports:

In a peer-reviewed study, researchers at the U.S. Environmental Protection Agency found alarming levels of the brain-damaging metal can flow out of household faucets for years after construction work disrupts service lines that connect buildings to the city’s water system.

The study also found the city’s testing protocols — based on federal rules — are likely to miss high concentrations of lead in drinking water.

Yet when city officials notify homeowners about new water mains being installed, the letters do not mention potential lead hazards. Residents are advised merely to flush all faucets and hose taps for several minutes after the work is completed to remove any “particulates,” a solution EPA scientists and independent experts say is grossly inadequate.

While city officials claim the water is safe to drink and that Chicago complies with the 1991 Lead and Copper rule, accurate and comprehensive testing in the city is lacking.

[T]he federal rule requires only 50 homes be tested every three years in Chicago, a city of 2.7 million people with more lead service lines than any other U.S. municipality.

Moreover, the rules require utilities to check only the first liter of water drawn in the morning. The EPA study found that although the first liter often is lead-free, high levels of the toxic metal can flow through taps for several minutes afterward, depending in part on the length of the service line between the home and street.

Studies have shown that exposure to even small amounts of lead can permanently damage the developing brains of children, lowering IQ and increasing the risk of learning disabilities, aggression and criminal behavior later in life.

While Chicago water may be safe to drink, for now, the EPA warns that the only way to ensure safety is the total and complete removal of all lead service lines. A project like that would be a tremendous undertaking for a city already crippled by debt and budget issues.

The Guilty Plea Effect in Civil Litigation

What happens when a party to civil litigation has pled guilty to a crime and the civil litigation arises out of the same set of facts as the criminal complaint? An admission against interest arises.

A plea agreement will have an effect in the ongoing civil litigation arising from the same action or occurrence. Generally, evidence of a prior criminal conviction is admissible in a civil proceeding as prima facie evidence of the facts upon which the conviction is based if those facts are relevant to some issue involved in the civil proceeding. Brown v. Green, 738 F.2d 202, 206 (7th Cir. 1984)

While tickets and other citations are generally admissible in Illinois, guilty pleas for intentional torts such as assault or battery are also admissible as admissions against interest. Specific to guilty pleas for assault and battery, the court in Galvan v. Torres, 8 Ill.App.2d 227, 232, 131 N.E.2d 367, 369, stated:

‘A plea of guilty to a criminal indictment for assault and battery is admissible in evidence in a civil case based upon the same assault and battery as it is an admission against interest. Young v. Copple, 52 Ill.App. 547; Cammarano v. Gimino, 234 Ill.App. 556.

Barnes v. Croston, 108 Ill. App. 2d 182, 184, 247 N.E.2d 1, 2-3 (Ill. App. Ct. 1969)

Further, Smith v. Shehan is illustrative of this issue as it pertains to an assault and battery conviction. In Smith,  Plaintiff , a Correctional officer, brought a state common law tort action against another correctional officer for assault and battery. Plaintiff moved for judgment on the pleadings as to defendant’s liability on the ground that his prior criminal conviction for battering plaintiff prevented him from denying facts necessary to hold him liable on battery claim. The Court, held that in a tort action for assault and battery, defendant was collaterally estopped, under Illinois law, from denying liability by his prior conviction for battering plaintiff; defendant was party to criminal case, whether he battered plaintiff was actually litigated in criminal action, resolution of that issue was necessary for determination of defendant’s guilt, and issues were identical in both cases. Smith v. Sheahan, 959 F. Supp. 841 (N.D. Ill. 1997) The court in Smith stated that a guilty plea is an admission and may be considered with the other evidence. Id.

Airbag Recall: Takata’s Air Bag Market Share

Last week, air bag maker Takata declared 5.1 million U.S. vehicles defective. Since 2008, more than 53 million cars using Takata airbags have been recalled worldwide, 34 million of which are located in the United States.


via Takata’s air bag market share | Thomson Reuters.

Do Red Light Cameras Save Lives?


A Daily Herald analysis of 52 intersections across 29 suburbs shows. After cameras were installed, crashes involving injuries stayed the same or increased at nearly half the intersections where that data was reported.

Crashes considered hazardous increased at nearly one-third of intersections where that data was reported.

Truamatic Brain Injuries: Penn Team Furthers Understanding of How Concussion Can Cause Permanent Injury


Concussions are all too common in professional and college football. Doctors are now a step closer to understanding how concussions cause traumatic brain injuries and permanent damage to the brain. A University of Pennsylvania team has developed a new mathematical model to explain how permanent injury can happen in concussive contact situations.

Attorneys at Downs Rachlin Martin PLLC Explain:

The model evaluates why axons, the connections that allow brain cells to communicate with each other, can be damaged by a sudden force, even though they are understood to be quite elastic. The researchers note that “microtubules” run down the length of the axons in bundles, linked by a protein known as “tau.”  The link between the tau proteins and the microtubules is, however, not permanent – the proteins bind and unbind every few seconds, allowing the microtubules to slide relative to one another without damage and enabling the axon to stretch up to twice its original length. A rapid jolt –a concussive force – does not allow this process to take place. “When you pull [the microtubules] very fast, that bond doesn’t break and the forces get exerted on the microtubule itself. That’s what’s causing the damage in a traumatic brain injury.”

As the researchers note, an interesting aspect of this model is that it shows the tau protein as the center of axon damage in concussion. Aggregation of tau protein is the signature of chronic traumatic encephalopathy, (CTE) the neurodegenerative condition found in some athletes with multiple head traumas.

Read more at Penn Team Furthers Understanding of How Concussion Can Cause Permanent Injury | Downs Rachlin Martin PLLC – JDSupra.

Using a Dead Deponent’s Discovery Deposition at Trial

Illinois, unlike many states, uses two types of depositions. The discovery deposition, as its name suggests, is for the purposes of aiding in the discovery process and is a less rigid than a traditional deposition. The evidence deposition adheres to the rules of evidence and can be used in lieu of trial testimony should the deponent be unavailable. But what are practitioners to do if they have taken an evidence deposition but their deponent has subsequently died before an evidence deposition can be performed?

On January 1, 2012, an amended version of Illinois Supreme Court Rule 212(a)(5) went into effect to remedy this problem.  Under the current version of Rule 212(a)(5), a plaintiff’s discovery deposition can be used as evidence at trial under certain circumstances.  See Ill. Sup. Ct. R. 212(a)(5) (West 2012).  The Rule expressly states that this amended Rule 212(a)(5) applies only to cases filed on or after the effective date of January 1, 2011.  As outlined in the Committee Comments, “this amendment applies to case filed on or after the effective date (January 1, 2011), and only in “rare, but compelling circumstances” and “it is expected that the circumstances that would justify use of a discovery deposition would be extremely limited.””  See Ill. Sup. Ct. R. 212(a) Committee Comments (West 2012).

One major change to Rule 212 controls the purposes for which discovery depositions are used. It is important to delineate for the court when a case was filed in relation to the changes to Illinois Supreme Court Rule 212 which took effect July 1, 2011.

The amended Supreme Court Rule 212 holds as follows:

Purposes for Which Discovery Depositions May Be Used. Discovery depositions taken under the provisions of this rule may be used only:

Upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.
Ill. Sup. Ct. R. 212(a)(5) (West 2002)(emphasis added).

For cases filed prior to January 1, 2011, the Illinois Supreme Court Rules clearly prohibit the use of a deceased plaintiff’s discovery deposition as evidence at trial. See Longstreet v. Cottrell Inc., 374 Ill.App.3d 549, 312 Ill.Dec. 672 (5th Dist. 2007). “A deceased party/deponent remains a party to an action through the substituted representative of his estate so that [Supreme Court] Rule 212(a)(5) bars the use of a discovery deposition of the deceased party/deponent as evidence at trial.”  Berry v. American Standard Inc.382 Ill.App.3d 895, 901, 321 Ill.Dec. 221, 228 (5th Dist. 2008).  In Berry, the court barred use of plaintiff’s discovery deposition at trial as Supreme Court Rule 212(a)(5) affords the court no discretion in allowing use of a party’s discovery deposition as evidence at trial.  Id. at 902.  Without plaintiff’s discovery deposition, plaintiff was unable to prove his case and the trial court granted summary judgment.  Id. at 899.

Moreover, Rule 212 explicitly provides that a substitution of parties does not affect the right to use depositions previously taken. Ill. Sup. Ct. R. 212(d).  Where both a decedent and his estate as represented are parties to an action,  and the discovery deposition could not have been used as evidence prior to a substitution of the parties, the discovery deposition of the decedent is not admissible as evidence under Rule 212(a)(5).  Berry v. American Standard Inc.,382 Ill.App.3d 895, 321 Ill.Dec. 221 (5th Dist. 2008). A discovery deposition may not be used in place of live testimony upon the death of a party/deponent. Id.

Strict compliance with the Supreme Court Rules is required. Village of LakeVilla v. Stokovich211 Ill.2d 106, 116, 284 Ill.Dec. 260 (2004). Supreme Court rules are not mere suggestions but have the force of law. The presumption is that they will be obeyed and enforced as written. Bright v. Dicke166 Ill.2d 204, 201, 209 Ill.Dec 735 (1995).

This change to the rules dramatically changes how attorneys take and defend discovery depositions. No longer is a discovery deposition simply a vessel by which discovery of potential evidence is achieved. Now the discovery deposition can become evidence itself, increasing the importance of discovery depositions in every facet. It becomes vitally important for attorneys to be prepared for the worst and in turn be prepared to elicit the necessary testimony to win at trial. Discovery depositions are a valuable and fantastic opportunity to both develop your case and pin the deponent to their story permanently.

Netflix Downplays Court’s Net Neutrality Decision, Says Internet Providers Unlikely To Act


In the letter to shareholders that accompanied today’s earnings report, Netflix addresses the recent circuit court decision that was seen as a threat to net neutrality.

That decision could potentially be a problem for Netflix, because it could provide legal justification for Internet providers to reduce the speed at which Netflix video content is delivered unless the company pays the providers. As the letter (which specifically calls out Verizon for challenging net neutrality in court) puts it: “In principle, a domestic ISP now can legally impede the video streams that members request from Netflix, degrading the experience we jointly provide. The motivation could be to get Netflix to pay fees to stop this degradation.”

If that happens, Netflix says it would “vigorously protest,” but the company suggests that things probably won’t go that far. The letter, which is signed by CEO Reed Hastings (pictured) and CFO David Wells, argues…

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