Melissa A. Murphy-Petros Of Counsel

     

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Publications

  • Illinois Prejudgment Interest Update: Motion Challenges in the Circuit Court of Cook County

    Illinois Prejudgment Interest Update

    August 30, 2022

    Constitutional challenges to llinois’s prejudgment interest statute, 735 ILCS 5/2-1303(c), were consolidated for decision by Judge Marcia Maras and on May 27, 2022, Judge Maras held that the statute is unconstitutional. In response to Judge Maras’s ruling, which has not yet been addressed by a reviewing court, the Circuit Court of Cook County established a protocol for handling further motions challenging the statute on constitutional grounds or with respect to its application in a particular case.

  • Illinois Prejudgment Interest Update: Prejudgment Interest Statute Held Unconstitutional

    Illinois Prejudgment Interest Statute Held Unconstitutional

    June 1, 2022

    Since the Illinois prejudgment interest statute took effect on July 1, 2021, numerous constitutional challenges were raised in cases pending in the Circuit Court of Cook County. These challenges were consolidated for decision by Judge Marcia Maras, and on May 27, 2022, Judge Maras held that the prejudgment interest statute is unconstitutional.

  • Illinois Prejudgment Interest – June Update

    Illinois Prejudgment Interest – June Update

    June 7, 2021

    Pursuant to Illinois Public Act 102-0006 ‒ signed into law by Governor J.B. Pritzker on May 28, 2021 ‒ the Illinois judgment interest statute now imposes prejudgment interest in all actions brought to recover damages for personal injury or wrongful death.

  • Illinois Prejudgment Interest Legislation – UPDATE

    UPDATE on Illinois Prejudgment Interest Legislation

    March 29, 2021

    While Illinois Senate Bill 72 is an improvement over House Bill 3360, vetoed by Governor J.B. Pritzker on March 25, 2021, it is still problematic. If enacted into law, Senate Bill 72 would impose prejudgment interest on noneconomic damage awards for pain and suffering. Non-economic awards can never be anticipated with mathematical precision and often comprise the lion’s share of a personal injury or wrongful death verdict.

  • Illinois Legislature Passes Bill Amending Judgment Interest Statute to Impose Prejudgment Interest in Tort Actions

    IL General Assembly Passes H.B. 3360, Imposing Prejudgment Interest in Tort Actions

    January 15, 2021

    If it becomes law, Illinois H.B. 3360 amends section 1303 of the Illinois Compiled Statutes to impose prejudgment interest in tort actions. Prejudgment interest will begin to accrue on the date the defendant has notice of the injury from the incident or from a written notice. In entering judgment for the plaintiff in the action, the court will add prejudgment interest in the amount of 9 percent of the judgment per annum.
  • Cannabis and Appellate Law Practices Collaborate to Prepare Amicus Brief to U.S. Supreme Court in Challenge to Marijuana’s Schedule I Status

    Amicus Brief before U.S. Supreme Court in Washington v. Barr

    September 14, 2020

    Members of Wilson Elser’s Cannabis Law team Ian A. Stewart (Partner-Los Angeles) and Neil M Willner (Associate-White Plains) collaborated with the firm’s Appellate Practice Chair Melissa A. Murphy-Petros (Of Counsel-Chicago) to draft an amicus brief to the U.S. Supreme Court in the publicized case of Washington v Barr, which seeks to invalidate marijuana's Schedule I status under the Controlled Substances Act on constitutional grounds.

  • COVID-19: New York Appellate Courts Interim Operations Summary as of April 16, 2020

    April 17, 2020

    Wilson Elser compiled information from the appellate courts in New York to provide an overview of alternative court procedures during this unprecedented time of closures due to the COVID-19 pandemic. Executive order 202.8 (which extended statutory and regulatory service and filing deadlines and statutes of limitations until April 18, 2020) has been extended again in executive order 202.14 through May 7, 2020
  • The Minefield of Appellate Procedure: The Necessity of Post-Trial Motions Following Jury Trials in Illinois

    Post-Trial Motions Following Jury Trials in Illinois

    April 7, 2020

    In Illinois, a post-trial motion is required to challenge a jury verdict on appeal, but is not required to challenge a directed verdict. What happens when a directed verdict is granted in part and the remainder of the case is decided by a jury? Is a post-trial motion required to secure a new trial on all claims? In a recent decision, the Illinois Supreme Court answered this question – yes.

  • Learned Intermediary Doctrine Protects Pharmacy from Liability for Failure to Warn of Prescription Drug Side Effects

    Pharmacy Failure to Warn of Prescription Drug Side Effects

    March 28, 2019

    The Illinois First District Appellate Court recently held that pursuant to the learned intermediary doctrine a pharmacy has no duty to warn customers of prescription drug side effects that may occur in “anyone” who takes the drug.

  • Overcoming the Weakness in a Summary Judgment Decision on Appeal

    New York Law Journal

    April 10, 2017

  • Illinois Supreme Court Strikes Down Six-Person Civil Jury Statute as Unconstitutional

    Illinois Six-Person Civil Jury Unconstitutional

    September 26, 2016

    Public Act 98-1132, effective June 1, 2015, amended section 2-1105(b) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1105(b)) by limiting the size of a jury in all civil cases to six people. In an action filed after the effective date, defendants filed their appearance and then moved for leave to file a 12-person jury demand and to declare the Act unconstitutional. The circuit court found the Act unconstitutional and the appeal proceeded to the Supreme Court, which immediately hears all appeals from circuit orders finding a state statute unconstitutional. 

  • The Minefield of Appellate Jurisdiction: Timely Filing the Notice of Appeal May Not Be as Simple as It Seems

    Illinois: Notice of Appeal Filed Late Is Null

    August 12, 2016

    In a recent case, the Appellate Court of Illinois, First Judicial District, acknowledged that a circuit court may have caused confusion when it issued a written order disposing of substantive claims and then, by separate order entered the same day, scheduled a future status hearing for an unspecified purpose. However, the appellate court determined that an obligation ultimately lies with the parties to track the circuit court’s disposition of the substantive issues raised in the pleadings, to act promptly in accordance with the rules to preserve arguments for appeal, and to seek clarification from the court when the effect of its orders is in doubt.

  • Federal Judges May Recall a Discharged Jury to Correct a Mistaken Verdict

    Federal Judge May Recall Jury to Correct a Verdict

    June 13, 2016

    The U.S. Supreme Court upheld a district court's ruling that a federal district court judge may recall a jury to correct a mistaken verdict after the jury has been discharged. However, “just because a district court has the inherent power to rescind a discharge order does not mean that it is appropriate to use that power in every case.”

  • The Hub: Transportation News & Insights

    Quarterly Digest from Wilson Elser’s Transporation Practice

    February 2016

  • Where Suicide Is Caused by Intentional Infliction of Emotional Distress, Illinois Now Recognizes Ensuing Actions for Wrongful Death and Survival

    Intentional Infliction of Emotional Distress and Wrongful Death in Suicide Actions

    August 13, 2014

    Careful to draw the distinction between negligence and intentional torts in cases where a defendant’s actions cause emotional distress that leads to a suicide, the Illinois Appellate Court’s opinion in a recent case nevertheless opens the door to a wide variety of wrongful death and survival claims that were previously not recognized.

  • The Minefield of Appellate Practice: Notices of Appeal

    In Appellate Work, the Devil Is in the Detail

    August 11, 2014

    Because the filing of a notice of appeal is the jurisdictional step that initiates appellate review, it confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in it. Where a notice of appeal is filed improperly, the appellate court lacks jurisdiction over the matter and is obliged to dismiss the appeal.

  • Seventh Circuit Opinion Demonstrates the Importance of Engaging an Appellate Attorney When the Right to Appeal Is on the Line

    The Case for the Appellate Practitioner

    June 9, 2014

    By filing a Rule 59(e) motion just one day late, a plaintiff unwittingly rendered a summary judgment order unreviewable and changed the standard of review in an unfavorable way. The lesson from a recent case before the Seventh Circuit is that engaging an appellate practitioner to handle post-trial and appellate litigation is a necessity, particularly where the right to appeal is at issue.

  • Recent Case Advances Ninth Circuit Law on Pleading Diversity of Citizenship on Information and Belief

    Pleading Diversity of Citizenship on Information and Belief

    February 26, 2014

    “On information and belief,” which indicates a statement is made not from firsthand knowledge but in the firm belief that it is true, played a key role in a recent Ninth Circuit holding of first impression where the citizenship of parties to the case was unknown. The court agreed with Wilson Elser appellate attorneys, recognizing that the pleading of diversity of citizenship on information and belief is not sufficient to sustain federal jurisdiction throughout the life of a case, but reasoned that it is enough to allow the complaint to stand until it is served and a response is received; specifically, jurisdictional discovery is an appropriate solution because the insurer will likely be able to “obtain the information it needs via discovery from the defendants it can locate.”

  • California Appellate Court Expands Rights to Homeowners in Construction Defect Cases beyond Remedies Provided in the California Right to Repair Act

    CA Expands Rights to Homeowners in Construction Defect Cases

    September 19, 2013

    The California Court of Appeals (Fourth District) has held that the Right to Repair Act does not provide the exclusive remedy to homeowners in cases where actual damage has occurred because of construction defects, thereby upholding a homeowner’s common law rights and remedies to seek actual damages despite noncompliance with the terms and conditions required for relief under the Act.

  • Appellate Court in New Jersey Imposes a Limited Duty of Care on Texters in Connection with Personal Injury Matters

    Duty of Care to Refrain from Texting Driver on the Road

    September 5, 2013

    A recent decision by the Superior Court of New Jersey, Appellate Division, held that an individual texter who knows or has a reason to know that the recipient of the text is driving and will read the text while driving owes a duty of care to users of the public roads to refrain from sending the driver a text at that time.

  • NJ Appellate Panels Reach Opposite Conclusions on Duty of a Commercial Tenant to Inspect and Secure Parking Lot for Which It Has No Responsibility

    NJ High Court Likely to Consider Duty of Commercial Tenants

    March 5, 2013

    In one case, the court held “as a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so.”
    In a second case, the court held that despite a developer’s contractual responsibility for the maintenance and repair of an area outside a commercial condominium unit, the owner of that unit still owed a duty of care to the employee of an independent contractor with regard to a hazardous condition in that same location.

  • Avoiding the Ostrich Problem: Dealing with Adverse Precedent

    For The Defense

    January 2013

  • Illinois Supreme Court Places Primary Emphasis on Plaintiff’s State of Residence and Location Where Injury Occurred

    January 2013

    In Fennell v. Illinois Central Railroad Company, the Illinois Supreme court majority decision was clear that each forum non conveniens case is unique and must be considered on its own facts. However, Fennell establishes that in the interstate forum non conveniens context, the state of plaintiff’s residence and the state where his alleged injury occurred are vitally important, the court is to look at the location of plaintiff’s actual injury or exposure, and the focus is on plaintiff’s specific injury and whether any factor relating to its cause may be found in Illinois. 

  • Illinois Supreme Court Shapes Forum non Conveniens Debate on Plaintiff’s State of Residence and Location Where Asbestos Exposure Occurred

    IL Supreme Court Analyzes Forum non Conveniens in Pending Asbestos Cases

    January 10, 2013

    A recent Illinois Supreme Court ruling expands the options for the defense of non-resident asbestos cases pending in Illinois. Illinois is often considered one of the country's most attractive jurisdictions due to its plaintiff-oriented substantive law and the ability for plaintiffs diagnosed with a malignant disease to get a trial date as early as nine months from the date of filing. In its ruling, the Illinois Supreme Court emphasized that the plaintiff must have a connection with Illinois. While each forum non conveniens case is unique and must be considered on its own facts, the ruling may result in the transfer of hundreds of pending asbestos cases where the non-resident plaintiff was never exposed to asbestos in Illinois.

  • NY Appeals Court: Claims Disposed of by Motion Practice Not Concluded until Appeal from Judgment Is Decided

    Consequences for Trial Strategy Based on NY Court Ruling

    October 25, 2012

    An October 23, 2012, ruling by the New York Court of Appeals holding that claims disposed of by motion practice early in a case are not really concluded until an appeal from the final judgment is decided will have an effect on strategy for trial lawyers.

  • Insider's Guide to the Illinois Appellate Courts

    The Appellate Practice Compendium

    August 2012

  • One to Watch: Pre-suit Duty to Preserve Surveillance Video without a Written Request?

    July 24, 2012

    While Florida’s Second District Court of Appeal ruled that it would not be fair to businesses to require them to preserve video evidence without a written request, the court noted that the Fourth District Court of Appeal has held there can be circumstances in which a defendant has a duty to preserve evidence absent a request to preserve it. There is now a conflict among the appellate districts, which may ultimately be resolved by the Florida Supreme Court.

  • Illinois Supreme and Appellate Courts Issue Stern Reminders on Appellate Jurisdiction and Waiver

    June 12, 2012

    The Illinois Supreme Court and two districts of the Appellate Court issued written opinions on appellate jurisdiction and waiver issues, highlighting the perils appellate procedure may hold for the unwary litigant or counsel.
  • Cutting Corners Can Lose an Appeal

    May 9, 2012

    Illinois appellate court warns litigants that an appellate brief cannot be a trial court pleading with a new cover, and all appellate briefs must follow the strict rules of factual and legal citation imposed by the reviewing courts.

  • Ruling Significantly Reduces Insurer’s Exposure for TCPA Claims in Illinois

    April 30, 2012

    An Illinois appellate court has decided as a matter of first impression that statutory damages imposed by the federal Telephone Consumer Protection Act (TCPA) are punitive damages that cannot be covered by insurance.

  • Illinois Supreme Court Allows Jurors in Civil Cases to Question Witnesses

    April 19, 2012

    Allowing jurors to submit questions can improve juror comprehension of testimony and attention to the proceedings and increase overall satisfaction with jury service. For the litigants, juror questions may provide counsel with the advantage of “real time” glimpses into the jurors’ minds as the evidence is received.
  • Illinois Supreme Court Adopts Wilson Elser's Argument and Eliminates Wrongful Birth Defendants' Exposure for Post-Majority Damages

    May 2011

    The Illinois Supreme Court ruled as a matter of first impression that parents asserting a claim of wrongful birth may not recover expenses incurred for the care and support of their disabled child after the child reaches the age of majority. Clark v. Children's Memorial Hospital, No. 108656, 2011 WL 1733532 (Ill. May 6, 2011). This significant victory was won with the amicus curiae assistance of Wilson Elser's Appellate Practice and its co-chair Melissa Murphy-Petros.

  • National Appellate Practice Group 2009 in Review

    March 2010

    Skilled advocates, Wilson Elser's appellate attorneys have earned the firm a reputation for excellence in post-trial and appellate work.  Concentrating on the complex, highly technical, and constantly evolving discipline of appellate procedure, we have the experience needed to plan and execute the most effective post-trial and appellate strategy.  In addition to handling appeals, we provide critical assistance at the trial level, including consultation on the preparation of dispositive pre-trial motions, motions in limine, and jury instructions; participation at trial; and attendance at the jury instructions conference.

  • Illinois strikes down verdict caps

    February 2010

    On February 4, 2010, the Illinois Supreme Court, by a 4-2 ruling, invalidated an Illinois statute which established caps on the amount of non-economic damages such as; pain, disfigurement and loss of consortium, that can be recovered in medical malpractice actions.  In reaching its determination in Lebron v. Gottlieb Memorial Hospital (Ill. Supreme Court Docket Nos. 105741, 105745), the court determined that the statute violated the separation of power provisions stated in the Illinois Constitution by nullifying the court's inherent power to correct excessive jury awards.

  • Appellate Alert

    November 2009

    Wilson Elser's Appellate Practice Group has recently made new law in Illinois with respect to pleading causes of action for defamation per se.  In Green v. Rogers, --- N.E.2d ---, 2009 WL 3063399 (Ill. Sept. 24, 2009), Group Co-Chair Melissa A. Murphy-Petros (Of Counsel-Chicago) convinced the Illinois Supreme Court to hold, as a matter of first impression, that such claims must be pled with the same specificity and particularity as that required in pleading fraud claims.  This ruling not only secured dismissal of the complaint against Wilson Elser's client, but also established new law favorable to defamation defendants throughout the state.

Additional Publications

“The Insider’s Guide to the Illinois Appellate Courts,” Appeals Across America: An Insider’s Guide to State and Federal Appellate Courts, Dana Livingston, ed., ABA Publishing, 2011.

“Attacking the Quotient Verdict” (co-author with Daniel E. Tranen), Illinois Bar Journal, Vol. 97, No. 8, August 2009.

“‘Stream of Commerce Plus’ or Minus? Advancing the Law of Personal Jurisdiction in Product Liability

Cases,” DRI In-House Defense Quarterly, Vol. 3, No. 2, Spring 2008.

“Negligence and the ADA: Plaintiffs’ Use of ADA Violations as Evidence of Negligence in Premises Liability

Actions,” Real Estate Finance, Vol. 24, No. 1, June 2007.