A wrongful death lawsuit has taken a significant turn as the Appellate Court of Illinois addresses procedural issues in a case involving allegations of toxic mold exposure. On August 28, 2024, Destiny Dowdell, acting as the special administrator for the estate of Kera Rogers, filed an appeal against ROC II IL LaSalle, LLC, Millennium on LaSalle, LLC, and Momentum Construction LLC in Cook County Circuit Court.
The origins of this legal battle date back to April 20, 2017, when Dowdell initiated a wrongful death action against Dolce Living Communities Residential and Dolce Living Investments, LLC. The complaint alleged that Rogers died from complications related to toxic mold exposure at her workplace located at 29 South LaSalle in Chicago. Following the dismissal of the Dolce defendants without prejudice in November 2017, Dowdell amended her complaint to include ROC II IL LaSalle (ROC II), Millennium on LaSalle (Millennium), and Momentum Construction LLC (Momentum) as defendants.
In subsequent developments, Millennium and Momentum filed for summary judgment on April 25, 2019, arguing that there was no evidence linking Rogers’ death to toxic mold. ROC II followed suit with its own summary judgment motion. Additionally, ROC II filed a third-party complaint against FedEx Office and Print Services Inc., Rogers’ employer. This complaint was later amended to include James McHugh Construction Co. and Kinsale Contracting Group Inc., alleging their demolition work caused water intrusion leading to mold growth.
As part of the litigation process, Dowdell agreed to settle all claims against Kinsale and McHugh for $50,000. This settlement was approved by the court on February 10, 2020. The court found the settlement amount reasonable and dismissed all claims against Kinsale and McHugh with prejudice.
However, confusion arose regarding the status of Dowdell’s case following a September 3, 2020 order approving the settlement distribution among heirs. Despite this order stating that “this matter is dismissed with prejudice,” it became apparent that only claims related to Kinsale and McHugh were dismissed—not the entire wrongful death action against ROC II, Millennium, and Momentum.
Dowdell sought to correct what she perceived as an error in this order through a motion filed on June 8, 2023. She argued that her case was incorrectly marked as “disposed” despite being active and ready for trial. The trial court denied this motion on grounds that no clerical error existed in its September 3 order.
The appellate court reviewed whether denying a nunc pro tunc order—a correction meant to fix clerical errors—was appropriate under these circumstances. It concluded that while there was no clerical error warranting such an order since plaintiff’s wrongful death claim remained pending post-September 3 ruling; thus affirming lower court’s decision but remanding for further proceedings ensuring clarity around ongoing litigation status.
Attorneys involved include those representing both parties throughout various stages along with presiding Judge Maura Slattery-Boyle overseeing initial circuit proceedings before reaching appellate review under Justice D.B Walker alongside Justices Reyes & Van Tine concurring judgments within Case ID No:1-23-1247
This article was first published in Cook County Record.
