A state appeals panel kept the door shut on a legal malpractice action brought by a family whose legal action over asbestos exposure was tossed, saying a circuit court was correct in finding that, no matter how plaintiffs juggled the calendar, they still brought their lawsuit too late.
Vernon Nelson and John Q. Nelson filed suit two years ago, as administrators of Eva Nelson's estate, against Cascino Vaughan Law Offices. The firm has offices in Chicago and Milwaukee, and focuses on asbestos suits.
The case stems from a wrongful death suit the Nelsons filed in 2005, in which they were represented by Cascino Vaughan. The 2005 suit targeted several companies for allegedly causing Eva's death through asbestos exposure. Two of the companies were Aurora Equipment Company and Plastics Engineering Company.
In May 2007, discovery was closed in the asbestos suit, and six months later, the cases against the two companies were dismissed. The overall suit continued, with the Nelsons hiring new attorneys about July 2011, who made a motion to reopen discovery. The motion was denied Dec. 1, 2011.
In November 2013, the Nelsons brought their action against Cascino Vaughan, alleging, after hiring their new attorneys, they learned Cascino Vaughan had failed to obtain "essential" evidence prior to the close of discovery – evidence which they believed would have won them their original suit against the two companies. The Nelsons further claimed Cascino Vaughan never told them discovery closed in 2007 or that the case against the two companies had been dismissed.
In spring 2014, Cook County Associate Judge William E. Gomolinski tossed the malpractice suit. The Nelsons then took the case to the Illinois First District Appellate Court. A three justice panel of that court signed off on Gomolinski’s decisions in an unpublished order Nov. 10.
Gomolinski had ruled the starting date for the suit was May 15, 2007, when discovery was shut down, which gave the Nelsons, under the statute of repose, until May 15, 2013, to bring action against Cascino Vaughan. However, the Nelsons did not file until six months after that date. Gomolinski added that even if Nov. 13, 2007, was used as the starting date – the date the suit against the two companies was tossed – more than six years had still elapsed.
The Nelsons also contended Cascino Vaughan fraudulently concealed its alleged dereliction in the case, which prevented the alleged malpractice from coming to light until about July 2011. The Nelsons claimed the concealment should have triggered a five-year statute of limitations, beginning in July 2011.
Gomolinski discounted this argument and the appellate court backed him up. The appellate court noted courts have shied away from applying the five-year concealment doctrine. To illustrate the point, the appellate decision cited a 1987 Third District Appellate Court opinion stating the six-year statute of repose should still apply if a “reasonable time remains within the remaining limitations period.”
The appellate court found 22 months were left to run on the statute of repose in the Nelsons’ case – an ample amount of time, in the court’s view.
Failing their other arguments, the Nelsons contended they learned of the alleged malpractice in December 2011, when their motion to reopen discovery was refused and the suit was dismissed. Under this scenario, the statute of limitations would have provided them two years from that date to bring a lawsuit, and they would have ended up filing with two weeks to spare. Gomolinski throttled this argument, however, by pointing out the clock would have begun ticking around July 2011, when plaintiffs belatedly learned of the May 2007 discovery cut-off, which again made them tardy in lodging their suit by four months.
The appellate court drew attention to one of its rulings from earlier in 2015, saying the statute of limitations launches when a plaintiff discovers their alleged cause of action, even if they did not know exactly what harm they may have suffered until later.
The Spellmire Law Firm, of Chicago, represented the Nelsons in the malpractice lawsuit. Cascino Vaughn was defended by Hinshaw & Culbertson, of Chicago.
The appellate order was authored by Justice John B. Simon with justices Daniel J. Pierce and Michael B. Hyman concurring.
The appellate court filed the order under Supreme Court Rule 23, which means the order may not be cited as precedent, except in the limited circumstances allowed by the rule.