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06/29/95 STEVEN SOLICH AND HELEN SOLICH v. GEORGE

June 29, 1995

STEVEN SOLICH AND HELEN SOLICH, PLAINTIFFS-APPELLEES,
v.
GEORGE AND ANNA PORTES CANCER PREVENTION CENTER OF CHICAGO, INC., A CORPORATION, AND UNITED STATES STEEL CORPORATION, A CORPORATION, DEFENDANTS-APPELLANTS. GEORGE AND ANNA PORTES CANCER PREVENTION CENTER OF CHICAGO, INC., A CORPORATION, PLAINTIFF/CROSS-APPELLEE, V. UNITED STATES STEEL CORPORATION, A CORPORATION, DEFENDANT/CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Thomas P. Cawley, Judge Presiding.

Rehearing Denied July 28, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, S., JJ., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

On remand from the Illinois Supreme Court, this case involves claims for negligence and loss of consortium for the aggravation of Steven Solich's silicosis caused by George and Anna Portes Cancer Prevention Center's ("Portes") alleged failure to report clinically significant results of a chest X-ray in 1975. We also must address a cross-claim by Portes against United States Steel ("U.S. Steel") for equitable apportionment due to U.S. Steel's alleged negligence in failing to report X-ray results to Solich in 1976 and 1977. In a previous opinion, we reversed a judgment for the plaintiffs holding that the Soliches' direct action against U.S. Steel for its negligence in 1975 was barred by the exclusivity provision of the Workers' Compensation Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) We also held that section 13-212 of the Illinois Code of Civil Procedure barred the Soliches' claims against Portes. (See Solich v. Portes Cancer Prevention Center of Chicago, Inc. (1992), 238 Ill. App. 3d 741, 606 N.E.2d 572, 179 Ill. Dec. 740, rev'd (1994), 158 Ill. 2d 76, 630 N.E.2d 820, 196 Ill. Dec. 655; Ill. Rev. Stat. 1981, ch. 110, par. 13-212.) The Soliches then petitioned the Illinois Supreme Court for review of our disposition as to Portes only. The supreme court reversed, holding that the claims against Portes were not time barred by section 13-212. ( Solich v. Portes Cancer Prevention Center of Chicago, Inc. (1994), 158 Ill. 2d 76, 630 N.E.2d 820, 196 Ill. Dec. 655.) The supreme court remanded the action to this court so that we may reach other potentially dispositive issues previously not addressed.

The facts of this case are contained in two earlier opinions, therefore, we will provide only a brief background. (See Solich, 158 Ill. 2d 76, 630 N.E.2d 820, 196 Ill. Dec. 655; Solich, 238 Ill. App. 3d 741, 606 N.E.2d 572, 179 Ill. Dec. 740.) In 1948, Mr. Solich became a millwright helper at U.S. Steel. In 1968, he was promoted to foreman, which entitled him to an annual physical exam at the expense of U.S. Steel. Although the physicals were usually conducted at the U.S. Steel clinic, understaffing in 1975 prompted U.S. Steel to contract with Portes to perform employee physicals.

In 1975, Mr. Solich contacted U.S. Steel for a physical, who in turn arranged for the exam to be conducted at Portes. He signed a release which provided that the results of the exam would be sent directly to U.S. Steel's medical director and retained as part of Mr. Solich's permanent medical record.

The results of Mr. Solich's chest X-ray read as follows: "chest X-ray, interpretation normal *** lungs, fibrosis." Neither Portes nor U.S. Steel notified Mr. Solich of the 1975 X-ray results, nor did they inform him that the records could be released to him directly. Mr. Solich continued to work at U.S. Steel until 1982 when he retired.

Mr. Solich was diagnosed with silicosis in 1982. In 1983, he settled with U.S. Steel for compensation for his injuries incurred while on the job. His compensated injuries included hearing loss, silicosis and asbestosis. Mr. Solich then brought an action against both U.S. Steel and Portes for the aggravation of his silicosis in 1975 because they failed to communicate the results of his chest X-ray directly to him, and failed to arrange an adequate agreement with one another concerning reporting procedures. Mr. Solich's wife, Helen Solich, brought a derivative action for loss of consortium.

At trial, Mr. Solich maintained that if he had been informed of the fibrosis shown on the 1975 X-ray, he would have removed himself from the environment at U.S. Steel. He alleged that instead, he remained in U.S. Steel's dust-filled work environment for seven more years, which aggravated his silicosis.

The plaintiffs did not deny that silicosis is a progressive disease. Rather, their theory at trial was that the silicosis would not have progressed as quickly or substantially if Mr. Solich was removed from his work environment at U.S. Steel in 1975.

In turn, Portes filed a cross-claim against U.S. Steel for equitable apportionment alleging that U.S. Steel was liable for failing to report unfavorable X-ray results to Mr. Solich in 1976 and 1977. Portes maintains that U.S. Steel's negligent acts constituted subsequent, divisible injuries in further aggravation of Mr. Solich's silicosis.

The jury found in favor of the Soliches and against both defendants, entering a lump-sum verdict of $2,096,729.50 for Mr. Solich, and $350,000 for Mrs. Solich. By special interrogatory the jury determined that X-rays from 1976 and 1977 showed clinically significant abnormalities. The jury found in favor of Portes on its cross-claim against U.S. Steel and apportioned liability at 1% as to Portes and 99% as to U.S. Steel.

The circuit court entered judgment on the verdict and denied the defendants' post-trial motions. Both parties appealed. During the appeal process, Mr. Solich died and Mrs. Solich was appointed special administrator and substituted as representative of his estate.

The issues which warrant our consideration at this juncture are (1) whether a judgment notwithstanding the verdict should have been entered in favor of Portes, (2) whether Portes' claim against U.S. Steel for equitable apportionment applies to this action or, alternatively, whether U.S. Steel is entitled to a judgment notwithstanding the verdict, (3) whether Portes' recovery on its cross-claim, if valid, is limited by the Illinois Supreme Court's decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1, (4) whether the jury instructions, taken as a whole, clearly misled the jury and resulted in prejudice to the defendants, (5) whether the trial court erred in refusing instructions which clearly define the injury at issue in this case, and (6) whether the cumulative effects of the trial errors deprived the defendants of a fair trial.

First, Portes requests that we enter a judgment notwithstanding the verdict in its favor. A judgment notwithstanding the verdict should be entered only where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." ( Pedrick v. Peoria & Eastern Railroad Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Upon reviewing the record at length and considering all of the circumstances of the present case, it cannot be said that all of the evidence, when viewed in a light most favorable to the plaintiffs, so overwhelmingly favors Portes that no verdict in their favor could ever stand. Therefore, we decline to enter a judgment notwithstanding the verdict against the plaintiffs.

On remand, Portes also argues that we should enter a judgment notwithstanding the verdict in its favor because it did not owe a legal duty to the Soliches. Portes maintains that this is not a medical malpractice action, but rather the Soliches' theory is negligence due to an administrative lapse. Portes further suggests that we can infer the absence of a legal duty from the Illinois Supreme Court's previous opinion in this case which held that section 13-212 of the Illinois Code of Civil Procedure, the statute of ...


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