Chicago Business Litigation Lawyer Blog

Doctor Asserts Slander Claims Over Accusation of Negligence During Surgery – Tunca v. Painter

September 16, 2013 | Peter S. Lubin and James V. DiTommaso

An Illinois appellate court reversed a circuit court order dismissing a doctor’s lawsuit for slander per quod against two colleagues. Tunca v. Painter, et al, 965 N.E.2d 1237 (Ill. App. 2012). Two doctors who worked at the same hospital as the plaintiff alleged that the plaintiff was negligent during a surgery, resulting in injury to the patient. The plaintiff alleged that their statements were defamatory, causing damage to his professional reputation and a decline in patient referrals. After the circuit court dismissed multiple claims of slander per se and per quod, the plaintiff appealed. The appellate court held that the defendants’ statements were slanderous on their face, and ruled in the plaintiff’s favor.

The plaintiff, Dr. Josh Tunca, is a surgeon specializing in gynecological oncology. Defendant Dr. Thomas Painter is a vascular surgeon who worked at the same hospital. Defendant Dr. Daniel Conway was chairman at the time of the hospital’s quality review committee. After Dr. Tunca performed surgery to remove an ovarian tumor in June 2006, a severe blood clot formed in the patient’s femoral artery. Dr. Painter performed a femoral-femoral bypass, correcting the condition. Id. at 1241. Dr. Painter allegedly told the hospital’s vice president and medical affairs director that Dr. Tunca had “inadvertently cut the [patient’s] left iliac artery,” and made similar statements to other doctors. Id. at 1241-42. Dr. Conway allegedly spoke to Dr. Tunca, in the presence of other doctors, “regarding his allegedly cutting the [patient’s] artery.” Id. at 1242.

Dr. Tunca filed suit against Drs. Painter and Conway in July 2007, alleging slander per se against both defendants. This is a claim that the statements in question are unambiguously defamatory. He claimed that their statements, made in the presence of others, were “false, malicious, slanderous, and…inten[ded] to injure plaintiff’s good name and credit in his profession.” Id. After several dismissals of his slander claims, the plaintiff filed a third amended petition alleging slander per quod against both defendants, adding allegations that the defendants’ statements had been “disseminated throughout the hospital,” affecting his ability to treat patients and his ability to get new patients. Id. at 1245. After the Cook County Circuit Court dismissed these claims, the plaintiff appealed.

Courts Dismisses Defamation Claims Brought as Part of Employment Discrimination Lawsuit – Artunduaga v. University of Chicago Medical Center

September 14, 2013 | Peter S. Lubin and James V. DiTommaso

An Illinois federal district court dismissed claims of defamation per se and defamation per quod brought as part of a lawsuit alleging employment discrimination, holding that the statements in question amounted to non-actionable opinion. Artunduaga v. University of Chicago Medical Center, at al, No. 12 C 8733, mem. op. (N.D. Ill., May 16, 2013). The motion before the court only sought dismissal of the defamation claims and a claim for intentional interference with employment. The court stated that the statements at issue, while not legally defamatory, could still support the plaintiff’s employment discrimination claims. The case identifies the elements necessary to support a defamation claim under Illinois state law.

The plaintiff began a residency at the University of Chicago Medical Center (UCMC) in June 2011, under the supervision of defendant Dr. David Song. She met with Dr. Song and others in November 2011 in order to discuss her “unsatisfactory performance.” Id. at 2. A memorandum summarizing the meeting was sent to multiple hospital employees. The plaintiff was later placed on probation, and she eventually learned that her one-year contract would not be renewed. Dr. Song sent her a letter on April 30, 2012 that reportedly summarized her employment status and gave her an assignment for the remainder of her residency, with copies to two hospital officials. At a grievance hearing regarding the plaintiff on May 16, 2012, Dr. Song read aloud an email from another doctor containing criticisms of the plaintiff. The plaintiff claimed that Dr. Song added his own “critical assessment[s]” of her performance. Id.

Television Crime Program Reenactment Leads to Defamation, False Light Lawsuit – Butler v. Discovery Communications

September 10, 2013 | Peter S. Lubin and James V. DiTommaso

A television reenactment of a bombing, in which a man suffered severe injury and his friend lost his life, did not give rise to claims for false light invasion of privacy or defamation, according to an Illinois federal court. Butler v. Discovery Communications, LLC, No. 12 cv 6719, mem. op. (N.D. Ill., May 9, 2013). The court found that the reenactment’s portrayal of the plaintiff, while different from the plaintiff’s account of the incident, did not portray the plaintiff in an offensive or damaging fashion, nor did it harm the plaintiff’s reputation in a manner constituting defamation.

The defendant, Discovery Communications, broadcast an episode of its show “Wicked Attraction” on June 15 and July 7, 2012, about an incident involving the plaintiff, Alphonso Butler, that occurred on February 15, 2000. Butler was with his “best friend,” Marcus Toney, that night, when Toney received a package from his estranged wife. Id. at 1. According to Butler, Toney asked him to open the package, but then stepped between Butler and the package and opened it himself. The package contained a pipe bomb that exploded when Toney opened the box. The blast killed Toney and injured Butler. Toney’s wife and her boyfriend are in prison for his murder.

Sands Casino and Former Manager Trade Accusations

September 6, 2013 | Peter S. Lubin and James V. DiTommaso

Firing an employee is always a delicate matter. Not only are wrongful termination lawsuits a possibility, but there’s always the possibility that the employee has some information on the company which might be less than flattering. In a recent lawsuit, Steven Jacobs alleges he was wrongfully terminated by Sands China Ltd. as their chief executive officer. He also claims to be in possession of certain incriminating documents which Sands China might prefer not be revealed in a court of law.

The documents consist of about 40 gigabytes of information, which Sands says that Jacobs took “surreptitiously” when he was fired in 2010. The information includes three reports prepared by Steve Vickers of International Risk Ltd. The reports allegedly featured the investigation of “certain Macau government officials” and others, according to the letters sent by Sands’s lawyers to Jacobs’s lawyers, asking for the return of the documents.

Jacobs alleges that the reports were commissioned by Sands and include incriminating information “on foreign government officials, as well as individuals with whom they were doing business that were suspected of having ties to Chinese organized crime.”

Jacobs alleges that his employment with Sands was wrongfully terminated after he had disagreements with Adelson, Sands’s majority owner and chairman. The disputes include arguments over what Jacobs alleges were illegal demands that secret investigations be conducted of Macau government officials for information which Sands could then use as leverage against unfavorable regulations.

After Jacobs made these allegations, the U.S. Justice Department and Securities and Exchange Commission opened investigations to determine if Adelson’s company violated the Foreign Corrupt Practices Act. This Act bars any company with operations in the U.S. from making improper payments to foreign officials in order to win or maintain business.

Although Sands denies Jacobs’s allegations, it did admit a few months ago that it had found likely violations of the books, records, and internal provisions of the Foreign Corrupt Practices Act. Around the same time, Adelson said in a declaration that the investigation had been commissioned by Jacobs, not by the company. Adelson claims that he knew nothing of the investigation until after Jacobs had been fired. In his declaration, Adelson states, “I never asked or authorized Jacobs to conduct a private investigation or ‘create a dossier’ on Macanese officials. … We believe unequivocally that Jacobs initiated the investigation on his own for his own purposes.”

Last year, Sands was sanctioned by Nevada District Judge Elizabeth Gonzalez for failing to disclose the fact that it was sitting on a trove of documents in Nevada which Jacobs sought to use as evidence. The company, however, claimed that the documents could not be removed from Macau and that they are “privileged” and therefore exempt from disclosure. Gonzalez disagreed however, and ruled that Jacobs could legally use the documents as evidence.

Currently, the case has reached a standstill. Sands is now appealing three other rulings by the lower court to the Nevada Supreme Court and, most recently, it has won a postponement hearing on whether Sands China, being a Chinese company, can be tried in Nevada.

Jacobs claimed that this is nothing more than stalling the case in order to keep the incriminating documents against Sands hidden. Sands called these accusations “baseless”.

Online Defamation — Our Chicago Libel Attorneys Defend and Prosecute Online Slander and Libel Cases

September 5, 2013 | Peter S. Lubin and James V. DiTommaso

//www.youtube.com/watch?v=fGR6M8PnXiE

Estee Lauder Sued in Class Action For Alleged False Claims That Skin Cream Repairs DNA Damage

September 4, 2013 | Peter S. Lubin and James V. DiTommaso

The Class Action Lawsuit claims that Estee Lauder’s skin cream claims about repairing DNA are fraudulent. But as unbelievable as it sounds, dermatologist Dr. Jeanette Graf said creams can repair DNA.

“Whether it’s in the form of peptides, whether it’s in the form of retinols, whether it’s in the form of enzyme inhibitors — all of which play a role together in diminishing the amount of DNA damage,”

Graf told CBS News.

Campbell’s Soup and American Heart Association Deny Plaintiffs’ Claims in Misleading Labeling Lawsuit — Our Chicago Consumer Lawyers Pursue Consumer Fraud Claims in Chicago and Throughout the United States

September 2, 2013 | Peter S. Lubin and James V. DiTommaso

Most Americans are aware that what we eat has a large impact on our health, both short term and long term. Not least among these is the fact that diet plays a major role in heart disease. In order to ensure that they are making the best possible decisions at the grocery store, many Americans rely on information from the American Heart Association (AHA) in order to provide them with the necessary guidelines. To facilitate this, the AHA marks certain processed foods with a Heart Check mark in order to notify consumers that this particular food follows the guidelines as set out by the AHA.

However, according to the allegations in a recent lawsuit against the AHA and Campbell Soup Co., the Heart Check mark can be misleading. The lawsuit alleges that the AHA collects fees from “manufacturers of unhealthy, processed foods” in return for the manufacturer being granted the right to put the Heart Check mark on their products. However, according to the lawsuit, Campbell’s “Healthy Request” soups allegedly do not meet the AHA’s “non-commercial nutritional guidelines” most notably for sodium. Instead, the lawsuit alleges, the foods bearing the Heart Check mark meet the lower standards of the federal Food and Drug Administration. This could potentially cause problems for many consumers since high sodium consumption has long been association with high blood pressure and heart disease.

The lawsuit alleges that this practice is “unfair, deceptive and misleading” because it “causes consumers to overpay for Campbell’s AHA-certified soups, but also presents substantial health risks to all consumers, including the more than five million American consumers suffering from congestive heart failure”.

According to the lawsuit, Campbell Soup gets to charge customers more for its Healthy Request Products than it does for its other products, while the AHA collects between $5,200 and $17,500 per product each year. So the arrangement is of financial benefit to both Campbell Soup and the AHA while allegedly being detrimental to both the budget and the health of consumers.

The lawsuit alleges that a single serving of Campbell’s AHA-certified soups have “nearly three times the amount of sodium permitted by the AHA’s noncommercial nutritional guidelines, while a full can contains between six and seven times that amount.” Food manufacturers often play with their serving sizes in order to make their food fit nutritional guidelines. The AHA Heart Check mark has allegedly appeared on 97 different Campbell products ranging from soups to juices, breads, and sauces.

Carla Burigatto, Campbell’s director of external communications, has released a statement saying that “Campbell has complete confidence in the accuracy of our labels and our marketing communications and that they meet regulatory and other legal requirements”.

The American Heart Association has likewise denied the allegations of the lawsuit, saying that its “food certification program regularly conducts laboratory testing to verify that products earning the Heart Check mark meet our nutritional criteria”. They are careful to point out that these criteria “are more stringent that those of the Food and Drug Administration.” The AHA also insisted that the revenue from the Heart Check fees “is only sufficient for the program’s product testing, public information and program operating expenses.”

Getty Images Can Use Chi-Lites Image to Promote the Sale of its Images

September 1, 2013 | Peter S. Lubin and James V. DiTommaso

When a person feels that they have been wronged and seeks redress, there is sometimes debate as to which person or entity is really responsible. In a recent case against Getty Images (US) Inc., the judge agreed that the defendant had been wronged, not by the company being sued.

Marshall Thompson is the only surviving original member of the Chi-Lites, a rhythm-and-blues group from Chicago. Thompson filed a lawsuit against Getty Images for allegedly profiting from his likeness without having first obtained his permission.

The U.S. District judge, Matthew F. Kennelly, dismissed the lawsuit but he did give Thompson a few days to file an amended complaint.

In the original complaint, Thompson alleges that Getty Images violated the Illinois Right of Publicity Act (IRPA), which prohibits the use of an individual’s identity without that person’s written permission. According to the complaint, Getty Images violated the IRPA when it posted several images of Thompson online and offered to license them to customers.

In his written opinion on the case, Judge Kennelly pointed out that Getty Images’ website stated that the pictures of Thompson were to be licensed “for editorial use only”. Such a restriction would require customers who obtained licenses for the pictures to also obtain the appropriate rights and clearances before using the images for commercial purposes.

Such language absolves Getty Images from responsibility if one of its customers used the pictures for commercial purposes without first obtaining Thompson’s written permission to do so. In his opinion, Judge Kennelly maintains that, according to “Thompson’s theory, liability would attach to a photographer who licensed his photograph to a publication that then printed the photograph for a commercial purpose”. The judge concluded that this “is not a reasonable interpretation of the statute, as it would extend liability much too far and chill speech protected by the First Amendment.” This is an example of the fact that, when considering whether or not a law has been breached, judges must also take into account how their decision might impact other laws and statutes already in existence.

Judge Kennelly further rejected the argument that Getty Images had violated IRPA by using the photos to promote the sale of a product (that product being the photos themselves) without Thompson’s permission. Judge Kennelly concluded that IRPA only extended so far as to prohibit the use of a person’s image to promote another product. However he ruled promoting the sale of the photograph itself is not covered under IRPA.

In his written opinion, Kennelly noted a similar case in which a stock photography library had used the image of the late musician, James Brown, to sell a product. Brown’s estate had then stated a claim under IRPA and the Illinois Appellate Court had sided with the estate. Judge Kennelly admits that the decision reached by the court in that case was “arguably contrary” to his own ruling. However, he also noted that he found the Illinois Appellate Court’s ruling “unpersuasive” and believed that, should the case get so far, the Illinois Supreme Court would agree with his view of the law.

Cook County Court Declines to Enforce Bosely’s Non-Compete Agreement

September 1, 2013 | Peter S. Lubin and James V. DiTommaso

This blog has already discussed new litigation and recent cases regarding non-compete agreements. It may already be obvious that more and more of these cases are being decided in favor of the defendants. Another such case has recently had its time in court and, once again, the defendant came out on top.

In the lawsuit, Dr. William Yates went to work for Bosley Medical Group, a hair replacement clinic in Illinois’s Cook County. When he began working for them as an independent contractor in 2005, Dr. Yates had no apparent experience with hair restoration. According to his employment agreement, Bosley was to invest in teaching Dr. Yates the “highly specialized practice of hair restoration”. According to the complaint, Bosley invested more than $200,000 in Yates’s training. In 2012, Dr. Yates went to work for Ziering Medical, a rival hair replacement clinic located in DuPage County.

The crux of the case rested on the matter of geography. Apparently, as it is written, the non-compete agreement could have been interpreted two ways: 1) that the non-compete was limited to Cook County, or 2) that Dr. Yates could not work for a rival of Bosley’s anywhere in the United States, Canada, or Mexico. Paragraph 32 of the non-compete agreement states that, after termination of his employment with Bosley, “[F]or a period of two years thereafter, [Dr. Yates and WDY] shall not directly or indirectly compete with BMG or any of its affiliates … in hair restoration, including but not limited to hair transplantation and scalp reduction and related procedures, within the geographic marketing areas of [Bosley and its affiliates], namely any county (or counties, as defined below), in which [Bosley or its affiliates] then maintains an office.”

In their arguments, the attorneys for Bosley chose the interpretation which focused on counties. Although Dr. Yates was not technically worked in Cook County after he left Bosley, the plaintiffs argued that he was competing for clients in the Chicago area and that Ziering Medical advertises in Cook County. According to Bosley’s argument, advertising in Cook County was sufficient to violate the non-compete agreement. The Court rejected this argument, stating that

“Paragraph 32 of the Agreement does not prohibit Dr. Yates from providing hair restoration services in DuPage County. Bosley is located in Chicago. The Agreement is clear that this bars Dr. Yates from competing with Bosely in Cook County only. … Bosley’s allegation of breach of Paragraph 32 of the Agreement is based solely on advertising by Ziering in the Chicago Tribune and on its website. Such advertisements are not a breach of Paragraph 32.”

When Bosley pointed out that he should have the right to protect his investment in Yates’s training, the Court agreed with him, but only up to a point. In the end, it all came back to geography and the Court determined that the non-compete had not been violated. The Court stated in its Decision that “Bosley does not allege that Dr. Yates has directly or indirectly provided hair restoration services in Cook County. Bosley could have also barred competition in the counties surrounding Cook County as it did for other metropolitan areas where it maintains surgical offices, but did not do so. Bosley also could have barred marketing to prospective customers in Cook County by Dr. Yates, but did not do so by the language of Paragraph 32. Bosley is asking this court to construe Paragraph 32 liberally in favor of restraint but this court is required to construe Paragraph 32 narrowly in favor of natural rights.”

The Court granted the defendants’ motions to dismiss with prejudice.

You can view the full opinion of the court’s decision here
.

Reaching Compromises to Escape a Non-Compete Agreement

August 31, 2013 | Peter S. Lubin and James V. DiTommaso

Non-compete agreements have become fairly common, especially for those working in the technology field. Many companies are afraid that their employees will leave and take trade secrets and/or customers to their competitors. To prevent this from occurring, most employers require their employees to sign non-compete agreements as a condition of employment. Other times employers will sometimes have an employee sign such an agreement after she has already started working for the company, but in certain states, that requires some sort of additional compensation for the employee, such as a bonus, in order to make it binding. A non-compete agreement usually states that an employee will not work for any of the company’s competitors within a certain time frame after their employment with the company has ended. The time frame is generally for a year or two and there is normally a geographical component as well, most often prohibiting the employee from working for a competitor in the same state or county as the company.

Employees often sign these agreements thinking that they have no choice if they want the job. Or maybe they can’t think of a reason they would leave their current employer to work for a competitor. The latter plan might work out just fine for some people but for others, particularly in this economy, all it takes is a downsizing and suddenly these happy employees find themselves without a job and working for a competitor may be their only option.

While more and more courts lately have been siding with the defendants in lawsuits regarding non-compete agreements, many employees are still hesitant to leave their current employer. The idea of a lawsuit can be intimidating, especially knowing that lawsuits can be expensive and the company has much greater resources at their disposal than the employee to devote to fighting a legal battle. It’s also a sensitive area because, when a non-compete agreement is violated, the new employer is often also listed as a defendant. An employee trying to find work will not want to get their new employer in trouble. At the very least, the prospect of getting sued will make them a less desirable candidate to the new employer.

There are ways around these non-compete agreements and discussing options with a non-compete attorney is a great place to start. Many non-compete attorneys will tell you that the first step is always to talk to the current or former employer to see if they can adjust the non-compete agreement to create narrower definitions. Ideally, the result would still protect the employer while giving the employee the freedom she needs to make a living. Many companies aren’t even aware of how their own non-compete agreements are drafted. All they know is that they don’t want their employees to up and leave and take a bunch of the company’s hard-won customers or confidential information with them.

The non-compete agreement is supposed to prevent that but sometimes the agreement has been broadened to a point where it makes it almost impossible for the employee to find work. When working with a company that is at all reasonable, finding a middle ground is may be possible, sometimes with the help of an attorney to assist you. In any case, when trying to get around a non-compete agreement, it is better to be proactive by discussing it with your current or former employer before making a commitment to the new employer. You can also retain an attorney to review the agreement to determine if it is enforceable as sometimes it may be drafted too broadly or there may be a lack of adequate compensation rendering the agreement unenforceable.