2019 IL App (1st) 181579
Ill. App. Ct.2019Background
- Plaintiff Antwon Ross, a freight conductor, injured his T12 vertebra boarding a moving train in 2013 and later treated for years by orthopedic surgeon Dr. Sarmed Elias, including vertebroplasties, fusion, injections, and extensive therapy.
- Illinois Central hired neurosurgeon Dr. Andrew Zelby who opined Ross’s fracture was mild and most invasive treatments by Elias were unnecessary; Ross’s own expert, Dr. Dennis Gates, largely agreed.
- Illinois Central filed a third-party complaint for contribution against Dr. Elias alleging negligent, excessive treatment aggravated Ross’s injuries; Elias altered some medical records and billed ~ $1.25M (later adjusted downward).
- Ross and Elias privately negotiated and executed a settlement in early 2018: Elias paid Ross $25,000 (from personal funds) in exchange for release of contribution claims; settlement conditioned on a court finding of good faith.
- Illinois Central sought discovery of communications between Ross, Elias, and counsel; the trial court excluded production under a claimed common-interest exception to waiver and then found the $25,000 settlement was made in good faith, dismissing the railroad’s contribution claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $25,000 settlement between Ross and Elias was a "good-faith" settlement under the Joint Tortfeasor Contribution Act | Ross/Elias: settlement is legally valid and satisfied public policy favoring settlements; amount is reasonable given facts | Illinois Central: settlement is unreasonably low relative to Elias’s likely exposure, available insurance, large medical liens, and evidence of collusion; thus not made in good faith | Reversed: trial court abused discretion — settlement not entered in good faith and dismissal of contribution claim vacated |
| Whether sharing privileged communications between Ross and Elias waived attorney-client privilege or is protected by a common-interest exception | Ross/Elias: their shared communications concern common litigation interests (necessity of treatment; maximizing liability of Illinois Central), so the common-interest exception preserves privilege | Illinois Central: no written or express common-interest agreement existed; disclosure without an agreement waives privilege | Reversed: common-interest exception does not apply absent an agreement—trial court erred in sustaining privilege objections |
Key Cases Cited
- Antonicelli v. Rodriguez, 2018 IL 121943 (courts consider totality of circumstances to determine good-faith settlement)
- Johnson v. United Airlines, 203 Ill. 2d 121 (2003) (burden-shifting: settling party makes preliminary showing; challenger must prove lack of good faith by preponderance)
- Waste Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill. 2d 178 (common-interest doctrine can defeat privilege where expectations of confidentiality are unreasonable)
- In re Guardianship of Babb, 162 Ill. 2d 153 (courts must guard against collusion in good-faith settlement inquiries)
- Selby v. O'Dea, 2017 IL App (1st) 151572 (recognized a common-interest exception to waiver but contemplated limits and need for agreement)
- Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107 (disclosure to third parties generally waives attorney-client privilege)
- Warsing v. Material Handling Servs., Inc., 271 Ill. App. 3d 556 (low-value settlement with potentially liable party can indicate lack of good faith)
- Cleveringa v. J.I. Case Co., 192 Ill. App. 3d 1081 (presence of liens does not alone preclude good-faith finding, but comparative amounts matter)