Tag Archives: Set-Offs

Williams v. BNSF Railway Co. – Railroad failed to file its appeal within 30 days of trial court’s oral order denying its post-trial motion

Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901 (Mason)

Facts:  Plaintiff obtains verdict against the defendant and third party defendant in an F.E.L.A. case.  The defendant files a post-trial motion raising 45 different substantive basis as to why the verdict should be overturned or modified and also a 46th point seeking a set-off for taxes that would be paid for future wage loss.  On April 18, 2012, the trial court denied the defendant’s motion on the 45 different substantive bases in an oral ruling but took the “taxation” issue under advisement and indicated it would issue a ruling in the future.  On May 31, 2012, the defendant brought an emergency motion seeking leave to file supplemental authority relating to a remittitur claim that had been previously denied.  The trial court reiterated that the only issue under advisement was the taxation issue but made a comment that it was appropriate for the defendant to bring new case law to the court’s attention.  The trial court asked the parties to come back on June 6, 2012 and at the hearing on that date distinguished the case law that defendant provided and denied the defendant’s motion.  The parties then fought over the wording in the order, with the defendant seeking language that made it appear as if the order related to all aspects of the post-trial motion and the plaintiff seeking the order to reflect a ruling limited only to the disability payment remitittur and taxation issue.  The trial court sided with the plaintiff on the language in the order.  On June 29, 2012, the defendant filed its notice of appeal.

Holding:  The defendant’s request for a set off only serves to satisfy, not modify, the judgment and therefore did not serve to toll the time for filing the notice of appeal on the other grounds of the post-trial motion and because more than 30 days elapsed before the defendant filed it notice of appeal it was not timely and the appeal was properly dismissed.  The fact that the trial court did not issue a written order denying the post trial motions does not make the oral ruling of April 18, 2012 any less final.

Filed in Trial Book Under:  Notice of Appeal, Set-Off, SCR 272, Final and Appealable Order

Commentary:  The defendant’s attorney is likely in hot water with the client over this case.  This was a seven figure verdict and with 45 different grounds for new trial raised in the post-trial motion, the defendant clearly believed that they had a bad trial.  In light of the claimed confusion over the finality of the oral ruling on April 12, 2012, it was incumbent upon the defendant’s attorney to get a clarification relating to the impact of the oral ruling.  The opinion cites the recent case of Hernandez v. Pritikin on the issue that its a movant’s responsibility to obtain a ruling on his motion of he is to avoid forfeiture on appeal.  I’m surprised that on a case of this magnitude that a written order wasn’t required by the trial judge, or at least requested by the defendant’s attorney.  Making a clear and easy to understand record is a good practice to adopt and this case is a great example of the perils of permitting confusion to prevail without asking for clarification.

Useful Rules/Language from the Opinion:

Set-Offs:  “As our supreme court has noted, a request for a setoff seeks to satisfy, not modify, the judgment entered by the trial court. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000)…..Because the request is not a motion directed against the judgment, it is not subject to the 30-day time limit applicable to post-trial motions.” (Emphases in original.) Star Charters, 192 Ill. 2d at 48-49.

Final and Appealable Orders and SCR 272:  “Finally, the fact that the trial court did not issue a written order denying the posttrial motions does not make the oral ruling of April 18 any less final. Illinois Supreme Court Rule 272 provides that if, at the time of announcing final judgment, the judge requires the submission of a written order or if a circuit court rule requires the prevailing party to submit a draft order, the judgment is not final until the signed judgment is filed. Ill. S. Ct. R. 272 (eff. Nov. 1, 1990). However, Rule 272 further provides that if no such signed judgment is to be filed, the judgment is entered at the time it is entered of record.

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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