Category Archives: Trial

Egan v. McCullough – Trial court did not err in refusing an instruction that at least one of the drivers was negligent in death of passengers

Egan v. McCullough, 2013 IL App (1st) 122475 (Hyman)

Facts:  The executors of the estates of three women killed when they were passengers in a car that collided with a truck on an icy road filed wrongful death claims against both the driver of the vehicle and the driver of the truck (and his employer and affiliates) alleging that both drivers were traveling too fast for conditions and that the truck driver should have not have veered to the right prior to the collision.  Prior to trial, the plaintiff presented a motion in limine that sought to bar any argument or reference that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries, which was not objected to by the defendants and granted.  At trial, the evidence revealed that the roads were “icy, slushy, slippery, treacherous” and both of the drivers were traveling below the posted speed limit.  The driver of the car lost control of her vehicle on the ice and began to fishtail and cross over the center line and into the truck’s path of travel.  In response to this, the truck driver began to slow his vehicle in a controlled braking and also veered to the right into a field.  The car continued to cross into the oncoming lanes and also veered into the field where the car and truck ultimately collided.  The three passengers in the vehicle were killed as a result of injuries sustained in the collision.  The plaintiff presented an expert witness that was critical of the truck driver for traveling too fast for conditions and opined that had he been traveling 30 mph, which was 25 mph below the posted speed limit, he would have been able to stop his truck without colliding with the plaintiff.  The plaintiff also presented 3 animations showing various fact patterns, including a theory that if the truck driver had stayed in his lane and not veered to the right, the truck would have just missed colliding with the vehicle as it crossed over the oncoming lanes.  The plaintiff’s expert conceded on cross examination that the vehicle code does not require trucks to travel 25 mph below the speed limit, that he would not advise a driver to stay in its lane if a vehicle is crossing into its path of travel and that once the car crossed the center line the truck driver had 1.5 seconds to perceive the situation, decide on an action plan and react.  After the close of evidence, the plaintiff submitted a modified IPI 3.06 jury instruction that advised the jury that the court had determined that the collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable.  The trial court ruled that it would be improper for the jury to be instructed that it had determined that the collision was a result of negligence because no motion for directed verdict had been presented or granted by the court and neither of the defendants had conceded negligence.  The trial court refused the instruction and the jury found in favor of both defendants.

Holding:  Trial court did not abuse its discretion in refusing to give an instruction that at least one of the drivers was negligent since there was substantial disputed evidence as to whether either driver was negligent and the jury was free to find that both drivers acted reasonably under the circumstances.

Filed in Trial Book:  Standard of Review – Jury Instructions, Absence of Negligence, Snow and Ice, Directed Verdict, New Trial

Commentary:  This is the kind of result that keeps plaintiff’s lawyers up late into the night.  Typically, representing a passenger in a motor vehicle collision is a great case for the attorney because you file suit against both defendants and let the jury sort out the degrees of fault between the drivers.  But this case was far from typical and demonstrates that the mere existence of a collision does not always mean that you can establish negligence against the defendant drivers.  The plaintiff argued on appeal the finding from Millette v. Radosta, 84 Ill.App. 3d 5 (1980), which held that “an automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.”   But the appellate court distinguished this case and found that the accident did not occur under “normal conditions” and because of the icy road conditions the collision could have occurred in the absence of negligent driving.  This conclusion is a bit troubling because snow and ice is not unusual on Illinois roads in the winter (or fall and spring) and drivers need to be accountable for how they operate their vehicles in these conditions.  In my opinion, ice is a normal condition that drivers find in the winter, and if you lose control of the vehicle while driving on an icy road, it seems to follow that this loss of control occurred because you were traveling too fast for the conditions present on the road.  Adding typical and predictable snow and ice conditions on a roadway to the “act of god” defense seems to have the potential for unjust outcomes.

I don’t know what the policy limits were on the car, but I suspect that the likelihood of collecting  on a substantial verdict was much greater if the truck’s responsibility for the collision was at least 25%, and as a result the plaintiff tried to steer as much evidence of negligence onto the truck drier as they reasonably could.  From the facts presented in the opinion, it appears that the majority of any potential liability was on the driver of the vehicle who set the collision in motion when she lost control of her vehicle on ice and veered over the center line and into the path of the truck.  At that time, the truck driver was driving below the speed limit and, importantly, there was no evidence that he lost control of the truck on the ice.  Instead, he deliberately veered to the right to avoid the collision.  I think that the plaintiffs theory that the collision could have been avoided had the driver not veered to the right and stayed straight on his original path is a really tough argument to sell to a jury.  It’s hard to criticize a driver for instinctively veering away when suddenly presented with a vehicle crossing over the center line into its path of travel, and the plaintiffs’ retained expert conceded on cross-examination that he would not advise drivers to continue driving straight when a car crosses the center line into their lane of travel. Clearly, if the plaintiffs had received the jury instruction that they tendered regarding fault, the jury would have had to find one of the drivers responsible.  But based upon the evidence presented to the jury, the trial court refused the instruction because there was disputed evidence on whether any of the acts of the drivers were unreasonable under the circumstances.

Again, this is a heartbreaking result.  The plaintiffs were represented by a very good attorney with a track record for very successful results at trial, and with the expert testimony and three animations presented to the jury in support of the plaintiffs theory, it’s clear that no expense was spared in preparing the case for trial.  Yet, at the end of the day it seems as if the jury identified with the plight of the drivers on the snowy and slick road.

Useful Rules/Language from the Opinion:

Standard of Review – Jury Instructions:  A trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).  A circuit court does not abuse its discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles.” Id. A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they plainly misled the jury and resulted in prejudice to the appellant. Id. at 274.

Absence of Negligence:  ‘[W]e believe a presumption of negligence does arise when the occurrence is shown to proceed from a performance of acts of such character, that when due care is taken, no injury ordinarily results from it. An automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.’ Millette v. Radosta, 84 Ill. App. 3d 5, 27 (quoting Krump v. Highlander Ice Cream Co., 30 Ill. App. 2d 103, 105-07 (1961))….That the accident did not occur under “normal conditions” constitutes another characteristic distinguishing this case from Millette.  As plaintiffs tried to establish throughout the trial, snow covered Peace Road when the accident occurred, and witnesses offered differing opinions about the condition of the road and the effect it may have had on driving conditions. Therefore, unlike in Millette, it cannot be said that under the conditions present on Peace Road on December 1, 2008, an accident could not have happened unless one or both of the parties were negligent.

Directed Verdict:  Where a substantial factual dispute is disclosed by the evidence, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. Korpalski v. Lyman, 114 Ill. App. 3d 563, 566 (1983)

New Trial:  A court of review will not reverse a circuit court’s decision with respect to a motion for a new trial unless it finds the circuit court abused its discretion, and the reviewing court must be “mindful that credibility determinations and the resolution of inconsistencies and conflicts in testimony are for the jury.” York, 222 Ill. 2d at 179. An abuse of discretion occurs only if “no reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

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Filed under Automobile, Negligence, Trial

Perkey v. Portes-Jarol – Plaintiff met evidentiary standard for Holton “lost chance” claim but the trial court erred in not reducing medical malpractice judgment by the medical charges associated with the claim less the lien amount paid by plaintiff’s insurer

Perkey v. Portes-Jarol, 2013 IL App (2d) 120470 (Spence)

Facts:  Plaintiff sees the defendant, her primary care physician, with complaints of back pain and she orders a CT scan to rule out kidney stones.  The CT report states that the pancreatic ducts dilated and the radiologist recommends additional evaluation with ERCP to assess for either stricture or tumor causing this finding.  The defendant does not refer the plaintiff to a gastroenterologist for evaluation or consideration of the ERCP and the evidence is in direct conflict over whether the defendant discussed the findings of the CT with the plaintiff.  The plaintiff claims it wasn’t discussed at all and defendant claims that he advised that an ERCP wasn’t warranted because she had no other symptoms consistent with cancer and that they should take a “wait and see approach.”  Plaintiff never returned with any further complaints.  About one year later, the plaintiff was getting evaluated to donate a kidney to a friend and underwent another CT scan that led to an ERCP which revealed a tumor.  Plaintiff was diagnosed with pancreatic cancer.  She underwent a resection procedure and chemotherapy and radiation therapy and was able to resume her normal life.  Four years later she developed cancer in her lung, which was the same type as her pancreatic cancer and had metastasized to her lungs and resulted in her death approximately one year after the diagnosis.

At trial, a surgical oncologist testified that the cause of the dilation seen in the initial CT scan was the plaintiff’s pancreatic cancer and that the delay in her diagnosis of pancreatic cancer from February 2001 to July 2002 was a cause of the recurrence of her cancer in February 2006.  Her pancreatic cancer was Stage IIB when it was removed, which has a 5 year survival rate of 6%, and at the time of the misdiagnosis the cancer was likely a Stage II A, which has a 5 year survival rate of 12% or a Stage IA which has a 5 year survival rate of 36%.  The surgical oncologist conceded that the chances of it having already metastasized at the time of the initial CT scan was greater than 50% but if it had been diagnosed at that time the chances for a cure would have been greater.

The plaintiff’s expert family practice physician testified on direct exam that the treatment provided by the defendant did not conform to the degree of care, knowledge and skill that a reasonably careful family practice physician would use in Chicago in 2001 in like or similar circumstances.  On cross examination she described that the standard of care was what a typical patient would receive from 80% of the doctors.  The defendant moved for a directed verdict at the close of the plaintiffs case arguing that (1) the expert’s definition of the standard of care was improper and (2) the evidence did not support proximate cause because even if the defendant had diagnosed the plaintiff in 2001 her treatment would have been the same and there was more than 50% chance that she would have succumbed to the disease.  The trial court denied the motions on both counts.  The defendant then presented its evidence that the standard of care was met and that the plaintiff was going to die regardless of the diagnosis.  The jury found in favor of the plaintiff and against the defendant and awarded $600,000, of which $310,000 was allocated to the reimbursement of medical bills.

The defendant moved for a new trial on the grounds of (1) the experts incorrect definition of the standard of care, (2) that the proximate cause nexus had not been established, (3) that the jury was improperly instructed on the standard of care because the instruction utilized the term “reasonably careful” family physician, and (4) that the judgment should be reduced by $300,000 pursuant to section 2-1205.  After the motion was filed, the defendants learned that the bills had been paid by Blue Cross Blue Shield for a total of $136,933.85, so they modified their request to a reduction of $175,066.15.  Plaintiff argued that section 2-1205 did not permit a set-off in this case because there was a right of recoupment for the medical bills paid by the insurer. The trial court denied the motion.  Defendant then filed a motion to reconsider and requested that the court consider new documents that were not subpoenaed until after the initial motion.  The trial court granted defendant leave to file additional materials, which showed that the lien was subject to a further reduction of 1/3 under the common fund doctrine, but the trial court granted plaintiff’s motion to strike the materials because they were not “newly discovered” evidence as they were always available to defendant had they requested them prior to the initial motion for new trial.  Defendant appeals.

Holding:  (1) Trial court did not err in denying directed verdict and new trial on basis of experts incorrect definition of the standard of care on cross examination because the plaintiff had used the correct definition in its questioning on direct exam and any inconsistency merely went to the credibility of the witness. (2) The plaintiff’s evidence that the delay in diagnosis decreased her chances of survival met the legal requirements of the lost chance doctrine established in Holton which can be met despite the chances of survival being less than 50%.  (3) The jury instruction defining the standard of care was proper and in conformance with the revised 2011 IPI instruction.  (4) The trial court erred in not reducing the judgment pursuant to section 2-1205 by the medical charges less the amount paid by the insurer.

Filed in Trial Book Under:  Standard of Care, Proximate Cause – Lost Chance, IPI 150.01, Set-Offs, 735 ILCS 5/2-1205, Directed Verdict, New Trial, Motion to Reconsider

Commentary:  There’s a lot of material covered in this case and it is fact intensive so somewhat hard to keep straight, at least for me.  It seemed like a pretty solid case for the plaintiff on the issue of liability and that the defendant did not have a strong understanding or appreciation for the lost chance doctrine.  The lost chance doctrine from the Holton case only requires that Plaintiff establish some evidence that the negligence of the defendant reduced the effectiveness of treatment and that some lost chance of survival resulted.  It does not require that there be a greater than 50% chance of survival.  Here, the survival chances went from only 6% to 12% and Holton applied so this is a good case for citation in the future on this issue.  This case also serves a strong warning to plaintiffs attorneys to educate their experts on the appropriate definition of the standard of care and, just to be safe, work the definition into their questions on direct examination.  Even though the experts are pretty smart in their respective fields, they aren’t lawyers and won’t always appreciate how important the precise language of the instructions can be to the case.  I’ve had this happen to me before with an expert coming up with a goofy definition of the standard of care that then required that I pull out my jury instruction and literally read from it word for word as I asked the expert further questions.  The set-off issue should be a lesson to defense lawyers to get their duckpin a row prior to the trial regarding liens and rights of recoupment.  Even though the appellate court ultimately reduced the judgment, it came very close to finding a waiver on the issue and seemed critical of the defense for not issuing subpoenas until after they had already lost their motion.

Useful Rules/Language from Opinion:

Standard of Care:  In order for an expert to be competent to testify about the standard of care in a particular case, he or she must be licensed in the defendant’s school of medicine and be able to show that he or she is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in the defendant’s community or in a similar community. citing Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004)

Directed Verdict:  A trial court may not enter a directed verdict or judgment n.o.v. if there is any evidence, together with reasonable inferences drawn from the evidence, demonstrating a substantial factual dispute, or if the assessment of witness credibility or the determination regarding conflicting evidence is decisive to the outcome. Solis v. BASF Corp., 2012 IL App (1st) 110875

New Trial:  A trial court should grant a motion for a new trial if the verdict is contrary to the manifest weight of the evidence. Lawlor, 2012 IL 112530.  That occurs where the opposite result is clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on any of the evidence. Id. We will reverse a trial court’s ruling on a motion for a new trial only if the trial court abused its discretion. Id

Lost Chance:  In Holton, our supreme court stated, “To the extent a plaintiff’s chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.” Id. at 119. Plaintiffs are not required to prove that they would have had a greater than 50% chance of survival or recovery absent the alleged malpractice. Id.

Battle of the Experts:  The jury was faced with a classic battle of the experts, and the battle was for the jury, as the trier of fact, to resolve. See Davis, 405 Ill. App. 3d at 37-38.

IPI 150.01:  The Studt court did not reject the use of “reasonably careful” in the 2006 version of the instruction. Moreover, the appellate court has directly held that the phrase “reasonably careful” correctly replaces “reasonably well-qualified” in the instruction. Matarese v. Buka, 386 Ill. App. 3d 176, 184-85 (2008); LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 816-17 (2008). Accordingly, we conclude that IPI Civil (2011) No. 105.01 correctly states the law on professional negligence, and the trial court did not err in instructing the jury using this version.

Jury Instruction – New Trial:  A reviewing court will not grant a new trial based on a trial court’s refusal to provide a suggested jury instruction unless the refusal seriously prejudiced the complaining party’s right to a fair trial. Surestaff, Inc. v. Azteca Foods, Inc., 374 Ill. App. 3d 625, 627 (2007).

Motion to Reconsider:  The trial court’s ruling striking the evidence conformed with the principle that “[t]rial courts should not permit litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.” Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991).

Section 2-1205: Here, plaintiff’s interpretation of the statute would be correct if the statute stated “Such reduction shall not apply if there is a right of recoupment.” However, given that the statute says that the reduction shall not apply “to the extent that” there is a right of recoupment, we agree that this language limits the reduction by only the extent of, or amount of, the right to recoupment.

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Filed under Medical Malpractice, Negligence, Post Trial, Proximate Cause, Trial, Wrongful Death and Survival Claims

Cundiff v. Patel – Trial Court Erred in Barring Conversation Between Plaintiff and Insurance Adjustor That Would Have Corroborated Complaints of Pain Despite Gap in Medical Treatment

Cundiff v. Patel, 2012 IL App (4th) 120031 (Cook)

Facts:  Plaintiff was injured in a rear end collision in April 2008 and received treatment the following day, but then did not seek chiropractic treatment for his accident related injuries until August 2008.  In the meantime, he saw his primary care physician several times and did not make any complaints relating to his accident related injuries.  Plaintiff sought to admit evidence of his conversation with an insurance adjuster and to admit the adjustor’s activity log where the plaintiff told the adjustor that he was still having pain and intended on seeing a chiropractor.  The trial court barred the conversation and activity log pursuant to a motion in limine filed by the defendant on the basis that it was “self-serving part of settlement negotiations” and inadmissible hearsay.  Plaintiff obtained a verdict where the jury only awarded medical bills from the date after the occurrence but not for the chiropractic treatment from several months later and appealed the trial court’s ruling on the motion in limine.

Holding:  The trial court erred in barring evidence of the conversation because the statement could have been admitted without disclosing the existence of insurance and was not inadmissible hearsay because it was being offered to prove merely that plaintiff made a complaint of neck pain and not for the truth of the matter asserted that he actually had neck pain.

Filed in Trial Book Under:  Hearsay; Evidence – Insurance Coverage; Evidence – Settlement Negotiations; Offer of Proof

Commentary:  This is a case that challenges several assumptions that most trial lawyers make regarding the admissibility of this type of evidence at trial.  Motions in limine on the inadmissibility of insurance coverage and evidence of settlement negotiations are so routine that many attorneys wouldn’t even try to admit the statements.  I admire that the plaintiff’s attorney was so resilient in trying to get this evidence into his case and was also willing to appeal a case that even had the evidence been admitted would still likely result in a relatively small verdict.  The appellate court solves the evidence of insurance coverage by concluding that the foundational issues of the statement could be resolved through a stipulation so that the jury would never know who the adjustor was or that the context of the statement was made during settlement negotiations.  I’m not exactly sure how the mechanics of this would work or whether the trial judge can force the defendant to stipulate in that manner if they were unwilling to do so.  There was another procedural twist to this case in that the plaintiff failed to make an offer of proof at trial, normally a waiver of the issue on appeal, but the defendant failed to raise that issue on appeal.  As a result, the appellate court addressed the issue anyway and concluded that an offer of proof was not required to adequately review the issue because the records was clear as to the basis of the trial court’s finding.  All too often the appellate court will take the waiver as an opportunity to resolve the case in favor of the jury’s verdict, so it’s refreshing to see the court go out of its way to rule on this issue, particularly on such a small case.

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Collection Professionals Inc. v. Morgan Schlosser – Barring Evidence of Amounts Customarily Received for Medical Charges in Defense of Collection Efforts by Hospital Was Not Abuse of Discretion

Collection Professionals, Inc. v. Morgan Schlosser (3-11-0519)

Facts:  The defendant was uninsured and unemployed during her pregnancy when she received medical treatment from Illinois Valley Community Hospital, St. Margaret’s Hospital and an affiliated radiology service.  The providers turned their bills over to Plaintiff, a collection agency, that sued the defendant for the full amount of the medical charges reflected on their bills, totaling $8,906.16.  At trial, the defendant’s attorney attempted to cross-examine the plaintiff’s billing witness to establish that the amount billed is usually not the amount actually received by the providers for the charges, but the trial judge sustained plaintiff’s objections to the line of questioning and evidence on the actual amounts customarily received for the services was not admitted into evidence.  Also, the defendant challenged the plaintiff for not complying with the requirement of the Fair Patient Billing Act.  At the conclusion of the evidence, the trial court found in favor of the plaintiff and entered judgment in the full amount of the bills plus $250 in attorneys fees and court costs.

Holding:  The trial court did not abuse its discretion in precluding defendant from introducing evidence of the amounts customarily received by providers regarding their medical charges.

Filed in Trial Book Under:  Medical Bills; Collateral Source Rule

Commentary:  When I go to a car dealership, there is always a sticker on the car that tells me what the charge is for the vehicle.  I’ve never actually paid that price, and I suspect that the trial judge and three appellate justices deciding this case have not “paid sticker” either, but it doesn’t stop the dealer from listing that price as their version of the usual and customary price for each and every customer that enters the lot.  The “clear coat” style padding built into medical billing would make the William H. Macy character in the movie Fargo blush.  Reductions demanded by private health insurers and public payment sources like Medicare and Medicaid are substantial, oftentimes up to 60-75%, and have created an environment where the charges reflected on a medical bill have little or no bearing on the amount actually collected by the health care provider for similar services.  This case completely ignores this reality, which is great for the healthcare providers represented by the Plaintiff, but not so good for uninsured and unemployed pregnant women like the defendant.  The silver lining here is the court’s reliance upon Nickon v. City of Princeton, 376 Ill.App. 3d 1095 (2007) to reach its conclusion.  Nickon dealt with a collateral source issue and held that after a plaintiff submitted the full amount of a charge for the medical bills of a provider, the defendant was not permitted to establish the amount that a collateral source actually paid for the medical charge to satisfy the account.  With this decision, it will be much more difficult for a defendant in litigated cases to challenge the charges in a bill on the basis that the amount customarily received by the provider is different than the amount reflected on the billing statement, so long as the amount billed is similar to those charged by other providers.  However, when dealing with liens, particularly those situations where a provider refuses to bill the insurance company and instead files a lien on the lawsuit, this case potentially eliminates the arguments used for obtaining a reduction from the provider.  The impact is always worse on the uninsured, but when providers refrain from  submitting bills to insurance in the hopes of avoiding the reductions normally afforded through their agreements with the carriers, the impact of this decision will be felt by insured plaintiffs as well.

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McGee v. City of Chicago – Internet Research Conducted by Juror Results in New Trial for Defendant

McGee v. City of Chicago (1-11-1084) Harris.

Facts:  After spending three years incarcerated awaiting trial for attempted murder, the plaintiff was acquitted of the charges.  The plaintiff subsequently brought a malicious prosecution and intentional infliction of emotional distress case against the City of Chicago and several detectives and alleged that the charges were brought under a fabricated confession.  At trial, the defendants attorney explained to the jury in his opening statements that the plaintiff had claimed that he suffered from memory lapses and then the detectives later testified that the plaintiff told them during interrogation that he suffered from memory lapses as a result of being struck in the head with a bottle in Mexico.  Apparently, the defendants wanted to use this information to show that they had probable cause to arrest and charge the plaintiff in the first instance because he was referencing the memory lapses in response to whether he killed his neighbor.  During the trial, the bailiff reported that a juror had informed him that another juror had brought internet research to the jury room relating to memory lapses.  The trial court discussed the issue with the parties and ultimately re-read the jury instruction relating to jurors not being permitted to independently research the issues but did not single out the juror for a voir dire examination on the nature of the research.  The jury returned a verdict in favor of the plaintiff on the issue of malicious prosecution and awarded him $975,000.00 in compensatory damages and $110,000.00 in punitive damages from each of the detectives.  The defendants filed a post trial motion seeking a new trial on the basis that the trial court abused its discretion in not inquiring further of the juror that had conducted the research, which the trial court denied.  The defendant then appealed on that issue.

Holding:  Trial Court abused its discretion by failing to voir dire a juror known to have conducted independent research to determine the extent of the research and whether any party would be unfairly prejudiced by the jurors continued presence on the jury.

Filed in Trial Book Under:  Jury Verdict; Juror Misconduct; New Trial

Commentary:  It is unusual for the appellate court to disrupt a jury verdict based upon the conduct of a juror, so this case stands out as unusual.  However, I was very surprised that the trial court did not simply single this juror out to create a record as to what the research entailed, why it was done, and what impact, if any, it had on the case.  Instead, the trial court was very concerned with not embarrassing the juror, so she ultimately made no inquiry.  The appellate court calls this decision “well-intentioned… but misplaced.”  I agree.  Jurors are instructed at the outset of the case not to conduct internet research.  Therefore, this juror was in direct violation of a court’s instruction.  The trial judge should have created a record for the benefit of the parties, and in my opinion would not have been out of line to be upset with the juror for violating the instructions and placing the trial in jeopardy.

Where extraneous or unauthorized information reaches a jury, it is presumed prejudicial.  Thornton v. Garcini, 364 Ill.App.3d 612, 616-617 (2006).  The party challenging the verdict then needs only show that the information relates directly to something at issue in the case which the losing party did not have the opportunity to refute and that may have influenced the verdict.  Id at 617.   If this is shown, the burden shifts to the non-movant to show that no prejudice occurred.  Stallings v. Black and Decker, 342 Ill.App.3d 676, 681 (2003).  A verdict may stand only if it is obvious that no prejudice accrued to the defendant.  People v. Collins, 351 Ill.App.3d 175, 179-180 (2004).  Given the law on this issue, the trial judges failure to inquire of the juror led to a guaranteed reversal as the prejudice was presumed and once the burden shifted, the plaintiff had no facts to rely upon to rebut the presumption.

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Vanoosting v. Sellars – Plaintiff Permitted to Offer Evidence of Lack of Health Insurance to Explain Lack of Medical Treatment

Vanoosting v. Sellars, 5-11-0365 (Spomer)

Facts:  At trial, evidence is brought out by the defendant’s attorney that plaintiff had not seen a physician for three years prior to the trial.  Plaintiff’s counsel attempted to admit evidence that the reason that the plaintiff has not seen the physician was due to a lack of health insurance, which was barred by the trial court but preserved for review through a motion in limine and an offer of proof by the plaintiff’s attorney.  In the opening statement, defendant’s attorney told the jury that the plaintiff’s physician advised her to “come back if she had any problem” and that “for 3 years she’s had no medical treatment.”  Further, in closing argument, the defendant’s attorney argued that the plaintiff’s request for both pain and suffering and loss of normal life was “double-dipping” because all of the limitations on the plaintiff life were the result of her pain from the injuries.  The jury subsequently awarded the plaintiff compensation for pain and suffering but a zero award for loss of normal life.  Plaintiff’s post-trial motion was denied and she appealed, arguing that she is entitled to a new trial because: (1) the circuit court improperly prohibited her from testifying that she did not seek further treatment for her injuries in the three years prior to trial because she did not have health insurance, and (2) a zero award for loss of normal life cannot be sustained by the evidence, specially in light of the argument by defense counsel that plaintiff was “double-dipping.”

Holding:  (1) The trial court erred in prohibiting testimony from the plaintiff regarding her lack of health insurance to explain her lack of medical treatment for three years; and (2) argument by defense counsel that plaintiff was “double-dipping” by seeking damages for pain and suffering and loss of normal life is improper and warrants a new trial.

Filed in Trial Book Under:  Closing Argument; Evidence; Motions in Limine; Health Insurance; New Trial

Commentary:  This is a welcome decision that finally provides a solution to an evidentiary problem that was often extremely unfair to plaintiffs in personal injury cases.  It makes perfect sense that people without health insurance are often reluctant or unable to seek medical treatment for their problems.  However, in the courtroom, their lack of treatment is always argued, either directly or by inference, as a reflection on the nature and extent of the injury.  The argument that “if the plaintiff were hurt as badly as they claim then they would have seen a doctor” is effective and persuasive to juries, particularly with those that are cynical about personal injury claims in general.  Prior to this case, Plaintiffs were typically barred from rebutting this inference by admitting into evidence the actual reason for their lack of treatment – no health insurance to pay for it – either because of a trial court’s knee jerk reaction that any mention of insurance is inadmissible, which is not the case, or because this type of evidence violates the standard motion in limine barring evidence as to the wealth or poverty of a party.  This decision analyzes the admission of this evidence and concludes finally eliminates the dilemma faced by many plaintiffs that would otherwise seek treatment but can’t due to a lack of health insurance.  It was always an unfair advantage that defendants were able to exploit in many cases and it’s good to see the playing field leveled on this issue.  I anticipate that we will see a lot of motions in limine prior to trial to admit this type of evidence.

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Graham v. Northwestern Memorial Hospital – Record Supported Trial Court’s Finding That Contributory Negligence Instruction Was Improper Because Plaintiff’s Decedent Was Completely Devoid of Reason Prior to Suicide

Graham v. Northwestern Hospital, 2012 IL App (1st) 102609 (Garcia)

Facts: Plaintiff’s decedent was a 49 year-old woman with a history of mental illness and prior suicide attempts.  She was taken to Swedish Covenant Hospital by the police because her family feared for her safety after her suicide attempt with pills and wine.  After being evaluated by her long-time psychiatrist, she refused admission to the hospital and was admitted against her will and then transferred to defendant Northwestern Hospital for in-patient treatment.  During this admission she was often hostile and combative and her psychiatrist testified that she was “falling apart mentally and emotionally” and was “in severe emotional pain.”  Her psychiatrist directed the staff at Northwestern to put her under continuous observation but she was ultimately able to hang herself with a bed sheet and died while under the care and observation of the defendant.  At trial, the jury was instructed on the issue of contributory negligence and found in favor of the plaintiff for $490,196, but assessed the plaintiff’s decedent 49% and reduced the recovery accordingly.  As a result of a set-off from pre-trial settlement with another defendant, the defendant Northwestern Hospital would not be responsible for any payment of damages to plaintiff from the verdict.  Plaintiff filed a post-trial motion arguing that (1) the trial court erred in permitting the jury to be instructed on contributory negligence because the evidence established that plaintiff’s decedent was completely devoid of reason at the time of the incident and therefore incapable of contributory negligence, and (2) the conduct of the defendant’s attorney prejudiced the jury against the defendant.  The trial court found that the evidence required the refusal of the jury instruction for contributory negligence and granted the plaintiff’s motion and ordered a new trial on damages only.  The trial court also based its decision in part on the conduct of defense counsel but did not elaborate upon that basis in its ruling.  Defendant appealed.

Holding:  (1) Trial court did not abuse its discretion in granting a new trial based upon the error of instructing the jury on contributory negligence because evidence supported trial court’s conclusion that plaintiff’s decedent was completely devoid of reason at time of incident, (2) Record did not support a finding of misconduct by defendant’s counsel to support a new trial on that basis, and (3) trial court abused its discretion in ordering new trial on damages only, rather than a new trial on all issues.

Filed in Trial Book Under: Jury Instructions, Contributory Negligence, Suicide, New Trial

Commentary:  I have to admit that when I first started reading this opinion I was mostly looking forward to learning what the misconduct was that the trial court found warranted a new trial.  The opinion does not reveal anything other than that there was some type of verbal scuffle between the lawyers that the judge instructed the jury to disregard, so there is no Real Housewives-like drama or sordid details in the opinion to gossip about.  Not surprisingly, the appellate court made short shrift of this issue and the opinion focuses instead on the contributory negligence instruction and whether the new trial should be limited to damages or on all issues.  On the contributory negligence instruction, this case seems to be pretty favorable for plaintiff’s in future cases involving suicide.  The legal standard pursuant to Hobart requires that the trial court determine that the plaintiff was completely devoid of reason that they are incapable of contributory negligence and this must be the only rational conclusion.  This is a pretty steep hill to climb, but with the facts set forth in this opinion there is some guidance to future plaintiff’s on what evidence is required to meet this difficult standard.

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