A state appeals panel has tossed out a $43 million verdict for a woman severely injured in a car crash, agreeing with trucking company defendants that social media posts concerning the case from the plaintiffs' lawyers may have represented an improper attempt to sidestep the court and influence jurors.
On March 31, a three-justice panel of the Illinois First District Appellate Court sided with Addison-based transportation company Viper Trans Inc. and other trucking defendants, finding a Cook County judge mishandled the defendants' request to investigate questions over whether attorney Kenneth J. Allen and others with his Northwest Indiana-based firm may have tampered with jurors, which the appellate court agreed should have resulted in a mistrial.
The case at the heart of the appeal dates to 2016, when plaintiffs Cynthia and Mark Kroft filed suit in Cook County Circuit Court against Viper Trans and related defendants.
That lawsuit centered on catastrophic injuries Cynthia Kroft suffered when her vehicle was struck from behind by a semi tractor trailer that was owned by defendant PR Rental and leased by Viper Trans.
According to court documents, Cynthia Kroft was 53 years old at the time of the accident, was working as a nurse, and was otherwise physically active.
However, during the accident she suffered severe injuries, including to her spinal cord, and is was left "an incomplete quadripilegic." According to court documents, spinal surgeries and other treatments have restored some of her physical abilities, including the ability to walk short distances with a cane.
Her medical bills have totaled $1.2 million, according to court documents.
Her case, however, has proceeded to trial twice.
In 2021, a jury awarded her more than $43 million.
However, defendants were awarded a new trial, when they persuaded a judge Kroft's attorneys have "repeatedly violated various rulings" concerning evidence and testimony during the trial and "had engaged in improper ad hominem attacks against the defendants and their attorneys."
The case was assigned to a different judge for the new trial. During jury selection, jurors were instructed to avoid reading online material about the case or anyone involved in it, including on social media sites, like Facebook.
However, that same day, a blog-style post appeared on the Allen firm's website and Facebook page, titled "What Jurors Should Know But Don't."
According to court documents, the post included references to the prior trial and the $43 million verdict, which had been set aside.
The post further discussed the alleged extent of Kroft's injuries, as well as new claims concerning her condition.
And the post indicated the plaintiffs hoped to secure a new verdict worth about $100 million.
The post notes jurors are not supposed to know such things under the law, but encourages readers to contact their elected lawmakers to change the law to allow jurors to "learn the entire story" in such cases.
According to court documents, defendants brought the posts to the court's attention six days into the trial, saying they had just discovered them. The defendants asked for a mistrial.
Allen and his co-counsel denied authoring such posts, which they said were written by others in the firm.
Cook County Judge Joan Powell conducted an inquiry into the matter, but decided to let the trial move forward after no jurors admitted under questioning in open court to having seen the posts.
At the conclusion of the second trial, the new jury again awarded the plaintiffs about $43 million, a number substantially identical to the amount awarded in the first trial, which jurors were supposed to have no knowledge of.
Defendants noted the uncanny similarity in again arguing Allen and his co-counsel had "tainted" the jury with their social media posts.
The judge denied requests for a new trial, setting the stage for appeal.
And on appeal, the First District justices said the lower court dropped the ball in responding to what they said could have at least appeared to be an attempt by the plaintiffs' lawyers to sway the jury.
In the ruling, the First District justices noted the posts improperly discussed prior proceedings in the case and contained factually incorrect statements and misinformation, all in an apparent bid to drive up a potential jury award and "accomplish something that the plaintiffs attorneys could never do in the courtroom..."
"Here, it is beyond dispute that the plaintiffs' attorneys reasonably should have known that the social media posts they were publishing during trial included an egregious amount of information that would seriously threaten the fairness of this trial and the impartiality of the jury if such information was disclosed to the jurors," the justices wrote.
The justices agreed that the statements published by Allen and his co-counsel in the allegedly offending social media posts, both individually and collectively, violated Illinois Rules of Professional Conduct, which govern attorney behavior in the state.
They added they believed "the extent of the prejudicial information that the plaintiffs' attorneys included in these posts is shocking to this court and is certainly in violation of" Illinois attorney conduct rules.
Justices also criticized Judge Powell's handling of the matter, saying the judge had fallen far short of conducting a thorough investigation of potential attorney misconduct in the case, instead focusing much of her inquiry on asking jurors if they had seen Allen's posts.
Even though no juror admitted in court to seeing the posts, the appellate justices said the judge's handling of the inquiry - indicating jurors could face consequences for violating her order to avoid reading such social media posts and asking for a show of hands in open court - may have "dissuaded a juror from later coming privately after having time to reflect on the trial court's question."
"Any reasonable judge should have recognized that, given that the subject of investigation was a real and serious effort by attorneys trying the case to reach and influence the jury through the Internet or social media, the risk was simply too great that jurors would not be forthcoming on collective questioning in open court about what they had privately viewed on the Internet or learned from others," the appellate panel said.
"This is particularly true when the jurors had been admonished the day before that they could be found in contempt of court for seeking information on the Internet about the case, and they may have been uncertain as to what punitive consequences they faced if they admitted to knowledge of the social media posts."
The decision was authored by Justice Fitzgerald Smith. Justices Terrence J. Lavin and Aurelia M. Pucinski concurred in the ruling.
Pucinski added her own special concurrence to the decision, saying only: "I concur completely with this opinion. I write only to express my profound sadness that this vulnerable plaintiff will now be exposed to yet another trial because of the actions of her attorney."
Plaintiffs were represented by attorneys Kenneth J. Allen, Ottoa J, Shragal, Robert D. Brown and Sarah M. Cafiero, of Allen Law Group, of Chesterton.
Viper Trans was represented by attorneys J. Timothy Eaton, Jonathan B. Amarilio and Adam W. Decker, of Taft Stettinius & Hollister, of Chicago.
The other defendants were represented by attorneys Hugh C. Griffin, or Hall Prangle & Schoonveld; and Shimon B. Kahan, of LaBarge Campbell Lyon & Kahan, both of Chicago.