Representative Cases
Appeals
Some of the cases on appeal in which Prof. Kionka has been counsel or co-counsel or filed a brief:
Class Actions
Kanerva v. Weems, 2014 IL 115811. Prof. Kionka was appellate counsel for the plaintiff class in Maag v. Quinn, one of four consolidated class actions challenging Illinois Public Act 97-695, which required retirees to begin contributing to premiums for post-retirement health insurance. Prof. Kionka was one of the two lawyers who argued orally in the Illinois Supreme Court on behalf of the plaintiffs in all four cases. The Illinois Supreme Court, agreeing with his arguments, held the statute unconstitutional under Ill. Const. art. 13 § 5. On remand to the Sangamon County Circuit Court for implementation of the Supreme Court’s decision, Prof. Kionka served as one of the four lead class counsel. The case resulted in refunds to retirees and survivors of over $60 million in premiums unlawfully collected.
Smith v. Illinois Central R.R. Co., 363 Ill. App. 3d 944 (5th Dist. 2005), rev’d, 223 Ill. 2d 441 (2006). Action on behalf of persons sustaining damages as a result of a train derailment and resulting toxic chemical spill. Trial and appellate courts sustained class certification. The Illinois Supreme Court reversed, but the case continued in the trial court and ultimately settled.
Avery v. State Farm Mut. Auto. Ins. Co., 321 Ill. App. 3d 269 (5th Dist. 2001), rev’d, 216 Ill. 2d 100 (2005). Nationwide class action against automobile insurer for breach of contract and consumer fraud by failing to pay for original equipment manufacturer parts as promised. The Appellate Court affirmed a judgment of $1.05 billion in favor of 4.75 million class plaintiffs. Prof. Kionka co-authored class plaintiffs’ brief and was one of the two lawyers who argued successfully on behalf of class plaintiffs in the Appellate Court. Judgment reversed by the Illinois Supreme Court.
Torts: Auto Cases
Isom v. Barham, 2012 IL App (5th) 100359-U. Wrongful death action arising out of motor vehicle accident. Prof. Kionka represented Barham on appeal.
Archer v. Pavement Specialist, Inc., 278 F.3d 845 (8th Cir. 2002). Wrongful death action against road repair contractor following automobile accident in which children were killed; Prof. Kionka’s brief successfully argued that, under Arkansas law, parents could recover in full from any one of joint tortfeasors without suing the other.
Penberthy v. Price, 281 Ill. App. 3d 16 (5th Dist. 1996). Strong Illinois public policy justifies survival of punitive damage claim against estate of deceased intoxicated motorist.
Levin v. Welsh Bros. Motor Service, Inc., 164 Ill. App. 3d 640 (1st Dist. 1987). Action for personal injuries resulting from collision between plaintiff’s auto and defendant’s tractor-trailer; judgment for $797,860 affirmed.
Buczyna v. Cuomo & Son Cartage Co., 146 Ill. App. 3d 404 (1st Dist. 1986). Wrongful death action for death of automobile driver killed in head-on collision with truck; judgment on jury verdict of $1.5 million affirmed.
Torts: Comparative Fault
Prewein v. Caterpillar Tractor Co., 108 Ill. 2d 141 (1985). In a case of first impression, the Illinois Supreme Court held that comparative negligence did not apply to the conduct of plaintiffs bringing actions under the Illinois Structural Work Act.
Torts: Products Liability
Connelly v. Uniroyal, Inc., 75 Ill. 2d 393 (1979), appeal dismissed & cert. denied, 444 U.S. 1060 (1980). Products liability action against Belgium tire manufacturer, manufacturer’s parent company, and others for personal injuries allegedly sustained when tire failed during operation of motor vehicle. The Illinois Supreme Court held that: (1) distribution in Illinois of the tire manufacturer’s products rendered the manufacturer amenable to process under statutes governing service on private corporations and personal service outside the state; (2) the manufacturer, by such contacts, purposely invoked the benefits and protections of law of Illinois so as to make it reasonable to require the manufacturer to defend action in Illinois; and (3) participation in chain of distribution of tire by manufacturer’s parent company, whose trademark was printed on the tire, could render parent liable.
VanSlyke et al. v. Rapid American Corp., Ill. App. Ct. 5th Dist. 2010-11. Four consolidated cases brought on behalf of four decedents whose death allegedly resulted from mesothelioma caused by asbestos exposure. Multiple defendants. Trial court denied defendants’ motions to dismiss or transfer based on forum non conveniens; defendants appealed. Prof. Kionka represented all plaintiffs on appeal. Cases settled following oral argument in the appellate court.
Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099 (5th Dist. 1995), second appeal, 293 Ill. App. 3d 396 (5th Dist. 1997). Products liability action against manufacturer of asbestos-containing products that caused Mr. Hefner’s mesothelioma. The first appeal affirmed the trial court’s decision not to transfer the case under the doctrine of forum non conveniens; the second appeal affirmed the $10.5 million judgment and $1.5 million in prejudgment interest.
Illinois State Trust Co. v. Walker Mfg. Co., 73 Ill. App. 3d 585 (5th Dist. 1979). Deceased died when the automobile on which he was working fell from safety jackstands; products liability action against manufacturer. Judgment in favor of manufacturer reversed, remanded for new trial.
Charleston Nat. Bank v. International Harvester Co., 22 Ill. App. 3d 999 (4th Dist. 1974). Products liability action for wrongful death of worker killed while operating a large earth-moving vehicle; directed verdict for manufacturer reversed and remanded for new trial.
Torts: Medical Negligence
First Bank & Tr. Co. v. Memorial Medical Center, 2016 IL App (4th) 150603-U. Medical negligence case (alleged failure to properly instruct parents of newborn infected with strep B virus). Verdict and judgment for defendant affirmed on appeal.
Martin v. Marks, 80 Ill. App. 3d 915 (5th Dist. 1980). Dismissal of plaintiff’s complaint in a medical negligence case reversed.
Morse v. Hardinger, 34 Ill. App. 3d 1020 (5th Dist. 1976). Medical negligence action against estate of deceased physician to recover damages for loss of vision patient suffered after taking drug prescribed by physician; judgment for defendant reversed based on improper use of deceased physician’s deposition.
Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298 (1974). Action for personal injuries sustained by minor resulting from intramuscular injection. The Illinois Supreme Court held that a covenant not to sue the physician did not bar the action against the hospital and nurse; that the doctrine of res ipsa loquitur may be applicable to an intramuscular injection injury; and that complaint based on res ipsa loquitur theory of liability stated a cause of action.
Torts: Negligence and Proximate Cause
Pocklington v. AmerenIP, 2012 IL App (4th) 110808-U. Wrongful death and personal injury actions resulting from a natural gas explosion that destroyed plaintiffs’ residence. Prof. Kionka represented plaintiffs in three separate appeals from summary judgments for defendants.
Moldonado v. Creative Woodworking Concepts, Inc., 342 Ill. App. 3d 1028 (3d Dist. 2003). Employee injured by defectively designed door; judgment for defendant reversed.
Owens v. Consolidation Coal Co., 144 Ill. App. 3d 88 (5th Dist. 1986). Wrongful death and personal injury action for decedent’s death resulting from drug and alcohol overdose following his work-related injury over seven months earlier; summary judgment for defendants affirmed.
Ozment v. Lance, 107 Ill. App. 3d 348 (5th Dist. 1982). Suit for injuries sustained by minor employee of motel when assaulted by motel guests; summary judgment for defendant affirmed.
Torts: Other Issues
Steinkuehler v. Thiems Construction Co., 2015 IL App (5th) 140071-U. Nuisance and trespass case arising from silt in stormwater runoff from defendants’ subdivision development that accumulated in plaintiffs’ lake.
Doe et al. v. North Central Behavioral Health Systems, Ill. App. Ct. 3d Dist. 2003-05. Tort actions for failure to address or report physical and sexual abuse of children.
Smith v. Lane, 358 Ill. App. 3d 1126 (5th Dist. 2005). Passenger in a horse-drawn carriage is not subject to the provisions of the Equine Activity Liability Act.
Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 848 (5th Dist. 2004). Conversion action by depositor against bank for improperly removing funds from checking account. Verdict and judgment for plaintiff affirmed.
Zuber v. Illinois Power Co., 135 Ill. 2d 407 (1990). Action by widow of electrical worker for wrongful death. Following settlement, parties disagreed as to allocation of settlement proceeds and liability for costs. When the case reached the Illinois Supreme Court, plaintiff’s position and Prof. Kionka's argument prevailed.
Mitchell v. White Motor Co., 58 Ill. 2d 159 (1974). Illinois Supreme Court held that cause of action for loss of consortium is governed by the five-year statute of limitations.
Robinson-Patman Act (Price Discrimination)
Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck Corp., 374 F.3d 701 (8th Cir. 2004). Price discrimination and violation of state franchise law. Judgment for plaintiff affirmed by U.S. Court of Appeals where EJK represented plaintiff; reversed by the United States Supreme Court, 126 S. Ct. 860 (2006).
Insurance Law
ISMIE Mut. Ins. Co. v. Michaelis Jackson & Assocs., 397 Ill. App. 3d 964 (5th Dist. 2009). Construction of insurance policy coverage provisions.
Hathaway v. Standard Mut. Ins. Co., 285 Ill. App. 3d 67 (5th Dist. 1996). Beneficiaries of underinsured motorist coverage whose injuries were not fully compensated by coverage on underinsured vehicle were entitled to recover under their UIM coverage even though bodily injury limits of underinsured vehicle were equal to or greater than underinsured motorist limits.
Mid-America Bank & Trust Co. v. Commercial Union Ins. Co., 224 Ill. App. 3d 1083 (5th Dist. 1992). Action against insurer for negligence and bad faith for refusing to settle personal injury claim within the policy limits; judgment for plaintiff affirmed.
Kohlmeier v. Shelter Ins. Co., 170 Ill. App. 3d 643 (5th Dist. 1988). Breach of contract action against health insurer for refusal to pay medical bills; breach of contract portion of judgment affirmed.
Green v. J. C. Penney Auto Ins. Co., 722 F.2d 330 (7th Cir. 1983), second appeal, 806 F.2d 759 (7th Cir. 1986). Bad faith action against insurer for failure to defend and settle lawsuit against its insured; insurer liable for entire $122,500 judgment entered against its insured, interest on total amount of judgment against insured, and attorneys’ fees; affirmed.
Edwins v. General Cas. Co. of Wisconsin, 78 Ill. App. 3d 965 (4th Dist. 1979). Action against liability insurer for negligent and bad faith failure to settle claim against insured within policy limits; summary judgment for insurer reversed.
Worker Injuries: F.E.L.A. and Jones Act
Anderson v. CSX Transportation, Inc., Ill. App. Ct. 5th Dist. 2010 (Rule 23 order). FELA action for injuries to a railroad worker; judgment for plaintiff for $1,431,000 affirmed.
Richardson v. Missouri Pacific R. Co., 186 F.3d 1273 (10th Cir. 1999). Suit by injured railroad employee under Boiler Inspection Act; judgment on jury verdict for railroad reversed; admission of irrelevant evidence was prejudicial error.
Summers v. Missouri Pacific R.R., 132 F.3d 599 (10th Cir. 1997). Railroad engineer and fireman injured by toxic exposure; judgment for railroad reversed.
Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill. App. 3d 94 (5th Dist. 1991). Railroad workers’ F.E.L.A. action for injuries sustained while unloading bundles of ties; $175,000 judgment for plaintiff affirmed.
Huch v. S. J. Groves and Sons, Inc., 180 Ill. App. 3d 501 (5th Dist. 1989). Jones Act case; summary judgment for defendant, based on finding that plaintiff was not a “seaman,” reversed.
Reynolds v. Alton & Southern Ry. Co., 115 Ill. App. 3d 88 (5th Dist. 1983). Railroad switchman’s action against employer for alleged violation of the Federal Safety Appliance Act, resulting in injury to switchman during railroad car coupling operation; judgment for plaintiff affirmed.
Montgomery v. Terminal R. R. Ass’n, 73 Ill. App. 3d 650 (5th Dist. 1979). Action by railroad terminal worker for injuries sustained in a collision between an engine and a runaway boxcar; $240,000 judgment for plaintiff affirmed.
Worker Injuries: Construction Site
Cockrum v. Kajima Intern., Inc., 163 Ill. 2d 485 (1994). Structural Work Act case against builder by worker injured at construction site while cleaning windows; judgment for worker affirmed by Illinois Supreme Court.
Moore v. Centreville Twp. Hosp., 246 Ill. App. 3d 579 (5th Dist. 1993), rev’d on other grounds, 158 Ill. 2d 543 (1994). Action by construction worker injured at work site; judgment for worker affirmed. On further appeal, the Illinois Supreme Court reversed as to the allocation of damages between defendants, but allowed the plaintiff’s judgment to stand without further review.
Worker Injuries: Farm
Hanke v. Wacker, 217 Ill. App. 3d 151 (5th Dist. 1991). Farm employee’s action against employer for injuries caused by attempt to separate fighting boars at hog farm. Judgment on jury verdict in favor of employer reversed and remanded for new trial.
Worker Injuries: Police
Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, 2017 IL App (5th) 160344-U. Police officer injured in line of duty was entitled to a larger pension than he was initially awarded.
Workers' Compensation
Toon v. Illinois Workers’ Compensation Comm’n, 2017 IL App (5th) 160216WC-U. Issue: did accident arise out of and in the course of employment.
Cassens Transport Co. v. Industrial Comm’n, 218 Ill. 2d 519 (2006). Industrial Comm’n does not have jurisdiction to modify a wage differential award.
Trans World Airlines v. Industrial Comm’n, 191 Ill. App. 3d 856 (1st Dist. 1989). Workers’ compensation awards to claimants who were injured while working for airline after having been transferred out of state affirmed.
Hood v. Industrial Comm’n, 158 Ill. App. 3d 81 (5th Dist. I.C. Div. 1987). Arbitrator’s award reversed by Industrial Commission and Circuit Court; Appellate Court reinstated award, holding that claimant was engaged in business travel at time of accident, and his injuries arose out of and in course of his employment.
Springfield Park Dist. v. Industrial Comm’n, 49 Ill. 2d 67 (1971). Illinois Supreme Court held worker could be found to be totally and permanently disabled, even though injury confined to a single member; award for total and permanent disability affirmed.
Family Law
IRMO Weeks, 2021 IL App (5th) 200043-U. Post-dissolution proceeding. Judgment against our client reversed on appeal.
In re Guardianship of Spinnie, 2016 IL App (5th) 150564-U. Presumption of undue influence re gifts to daughter rebutted; judgment reversed.
IRMO Jones, 2016 IL App (5th) 150212-U. Appeal of the trial court’s order concerning maintenance, child support, and property division.
Edwards v. Attaway, 2012 IL App (5th) 100132-U. Judgment reversed, remanded for a new trial on property distribution issues.
Decedents' Estates
Phelps v. Land of Lincoln Legal Assistance Found., 2016 IL App (5th) 150380 (Rule 23 Order). Represented decedent’s heirs in a suit involving the validity of decedent’s will.
In re Estate of Beck, 272 Ill. App. 3d 31 (5th Dist. 1995). Estate executor concluded that bequest to defunct named charity lapsed, and another charity filed petition claiming that it was entitled to share of residuary estate as successor to defunct legatee; denial of petition affirmed.
Employment: Retaliatory Discharge
Flick v. Southern Illinois Healthcare, 2014 IL App (5th) 130319. Judgment for defendant (EJK's client) affirmed.
School Law
Barrall v. Board of Trustees of John A. Logan Community College, 2020 IL 125535. Held: § 3B-5 of the Illinois Public Comm. College Act allows laid-off tenured faculty, under certain circumstances, to bar the college from employing adjuncts to teach courses the laid-off faculty were qualified to teach.
Brown v. Board of Ed., Galatia Community Unit School Dist. No. 1, 38 Ill. App. 3d 403 (5th Dist. 1976). Mandamus action by school teacher to compel school district to offer her a teaching position and reinstate her continued contractual service status; judgment for school district reversed.
Contracts
Jiva Resources, Inc. v. JET Enterprises & Holding Co., LLC, Illinois Appellate Court 5th Dist. (2023). After briefing was completed, the case settled.
Brennan v. Connors, 644 F.3d 559 (7th Cir. 2011). Declaratory judgment action involving interpretation and validity of an indemnity agreement.
Muniz v. Herrin Medical Clinic, Ltd., 2011 IL App (5th) 090614-U. Action to enforce arbitration award, and for damages and penalties for fraudulent transfer of assets and breach of corporate fiduciary duties.
Mazza v. Monticello Investments Inc., Ill. App. Ct. 5th Dist. 2010 (Rule 23 order). Action for breach of contract and express warranty involving sale/purchase of property for proposed landfill.
Civil Procedure
Porter v. Decatur Memorial Hosp., 227 Ill. 2d 343 (2008). Issue was whether proposed amended complaint related back under 735 ILCS 5/2-616(b). Judgment for defendant reversed.
Smith v. National Carriers, Inc., 188 Ill. App. 3d 119 (5th Dist. 1989). Trial court erred in denying plaintiffs’ § 2-1401 petition for new trial based on newly-discovered evidence.
Appellate Procedure
Bank of Herrin v. Peoples Bank of Marion, 105 Ill. 2d 305 (1985). Illinois Supreme Court held: the Appellate Court erred in denying plaintiff leave to file late notice of appeal.
Law Practice and Fees
Constance v. Brennan, 2014 IL App (5th) 110555-U. Action for breach of fiduciary duty in dissolution of law partnership. Trial court judgment for plaintiff reversed.
Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001). Jones Act case; attorney sanction of dismissal with prejudice for rule violation reversed.
Rankin ex rel. Heidlebaugh v. Heidlebaugh, 321 Ill. App. 3d 255 (5th Dist. 2001). Appellate Court reversed trial court’s denial of parents’ motion for sanctions against advocacy agency for developmentally disabled persons.
Norton v. Austin Nat’l Bank, 557 F.2d 1061 (5th Cir. 1977). Action for attorney fees pursuant to retainer contract by attorneys who represented guardian of estate of mentally incompetent in a personal injury case; district court’s order denying fees reversed.
Criminal Cases: Appeals
Note: Prof. Kionka does not ordinarily accept criminal appeals, which usually are better left to criminal law practitioners. Over the course of his career, however, he has made several exceptions, of which he won four.
People v. Harner, 2021 IL App (5th) 210075-U. Auto accident. Conviction affirmed.
People v. Barham, 337 Ill. App. 3d 1121 (5th Dist. 2003). Defendant’s conviction for reckless homicide arising from auto accident reversed without remand, based on insufficiency of the evidence.
People v. Lee, 185 Ill. App. 3d 420 (5th Dist. 1989). Defendant’s conviction for murder by arson reversed, based on ineffective assistance of counsel.
People v. Samples, 107 Ill. App. 3d 523 (5th Dist. 1982). Defendant’s conviction reversed; defendant’s motion for substitution of judge should have been granted.
People v. Koesterer, 44 Ill. App. 3d 468 (5th Dist. 1976). Defendant’s conviction for armed robbery based on improperly obtained confession reversed.
Amicus Curiae Briefs
LeBron v. Gottlieb Memorial Hosp., 237 Ill. 2d 217 (2010). Prof. Kionka co-authored an amicus curiae brief on behalf of 24 law professors in support of plaintiff-appellee, who ultimately prevailed.
Best v. Taylor Mach. Works, 179 Ill. 2d 367 (1997). Prof. Kionka’s amicus curiae brief on behalf of Illinois State Federation of Labor & C.I.O. and Ironworkers’ District Council of Greater Chicago addressed the issues on which the Illinois Supreme Court held the Civil Justice Reform Amendments of 1995 (also known as the “1995 Tort Reform Act”) unconstitutional.
Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443 (1970). Prof. Kionka’s amicus curiae brief on behalf of the American Trial Lawyers Association argued that whole blood was a “product” for purposes of applying rules of strict product liability; the Illinois Supreme Court agreed.
Prof. Kionka has also filed amicus curiae briefs on behalf of the American Trial Lawyers Association in the United States Supreme Court (Norfolk & Western Ry. v. Liepelt, 444 U.S. 490 (1980); Richardson v. Belcher, 404 U.S. 78 (1971)), and in the Minnesota Supreme Court (Ferguson v. Northern States Power Co., 307 Minn. 26 (1976). He has also participated in other amicus curiae briefs concerning certain med mal tort reform legislation.
Trial Consulting
Prof. Kionka has often consulted or participated as co-counsel in cases pending in federal and state trial courts. His participation is ordinarily limited to the legal aspects of the case — drafting pleadings and other documents, and briefing and arguing legal issues, such as pre-trial motions, evidentiary issues, jury instructions, post-trial motions, and pre-appeal matters. He has also served as an expert witness in several cases. By way of illustration, two class actions in which he worked with the lawyers representing the plaintiffs are:
St. Clair County, et al. v. Ford Motor Co., St. Clair County Circuit Court No. 03-L-115. Class action on behalf of a number of Illinois counties and municipalities alleging dangerous design defects in certain Ford Crown Victoria Police Interceptor automobiles.
Smith v. Illinois Central R.R. Co., Perry County Circuit Court No. 2004-L-27. Action on behalf of persons sustaining damages as a result of a train derailment and resulting toxic chemical spill. The Illinois Supreme Court decertified the class, but the case continued on behalf of almost 500 plaintiffs individually. The case was settled just prior to trial. See Class Actions, above.
Prof. Kionka worked as a member of the defense team in Brough v. Safariland LLC, St. Clair County Circuit Court No. 07–L–358. This was a products liability action brought by a Belleville police officer for injuries sustained during a SWAT operation in Belleville, Illinois on Nov. 10, 2006. Prof. Kionka participated in the trial court, assisting with pleadings, motions, responses, etc., and consulting on legal issues. The case settled as trial commenced.