The opinion
NOTICE 2024 IL App (4th) 240520-U
This Order was filed under
FILED
Supreme Court Rule 23 and is December 11, 2024
not precedent except in the NO. 4-24-0520 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
ROBERT L. SCHILLING, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Adams County
QUINCY PHYSICIANS & SURGEONS CLINIC, ) No. 18L53
S.C., d/b/a QUINCY MEDICAL GROUP and KREG J. )
LOVE, D.O., ) Honorable
Defendants-Appellees. ) Scott D. Larson,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Knecht and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed a judgment in favor of defendants in a medical
malpractice action where the trial court acted within its discretion by (1) denying
plaintiff’s counsel’s motions for a mistrial, (2) refusing to conduct further polling
of the jury, and (3) using the phrase “failed to diagnose” rather than the word
“misdiagnosed” in a jury instruction.
¶2 Plaintiff, Robert L. Schilling, filed this medical malpractice action against
defendants, Dr. Kreg J. Love, D.O., and his employer, Quincy Physicians & Surgeons Clinic, S.C,
d/b/a Quincy Medical Group. The jury returned a verdict in favor of defendants. Plaintiff appeals,
arguing the trial court should have (1) declared a mistrial, (2) polled jurors more extensively
following the verdict, and (3) given a jury instruction that used the word “misdiagnosed” rather
than the phrase “failed to diagnose” to recite plaintiff’s allegations of negligence. We affirm.
¶3 I. BACKGROUND
¶4 The issues plaintiff raises on appeal do not require us to present a detailed overview
of the evidence. It will suffice to say the following. Between January 12 and 26, 2017, plaintiff,
who was diabetic, sought treatment for left foot pain and swelling with his primary care physician,
Dr. Love. Dr. Love treated plaintiff with antibiotics for an infection (cellulitis) before eventually
referring him to a podiatrist. On January 30, 2017, the podiatrist ordered an X-ray and discovered
plaintiff had multiple fractures, which required surgeries and ultimately amputation of his foot.
¶5 Summarized briefly, plaintiff’s theory was that Dr. Love was negligent for failing
to order an X-ray and failing to instruct plaintiff not to bear weight on the affected foot. According
to plaintiff, had his fractures been diagnosed sooner through an X-ray, he would have recovered
without surgery or amputation. Defendants’ theory was that Dr. Love properly treated plaintiff for
cellulitis, which was the most likely cause of the symptoms at the time. Defendants also contended
it was impossible to know whether plaintiff’s outcome would have been different had Dr. Love
ordered an X-ray or instructed plaintiff not to bear weight on the affected foot.
¶6 Plaintiff’s complaint alleged that Dr. Love “[f]ailed to diagnose” the fractures.
During trial, plaintiff took the position that such failure to diagnose inherently constituted a
misdiagnosis. At the jury instructions conference, plaintiff tendered an instruction that included
the proposition that he claimed defendants were negligent in that they “[f]ailed to diagnose broken
bones.” However, plaintiff tendered an alternative to this instruction that included the proposition
that he claimed defendants were negligent in that they “[m]isdiagnosed the broken bones.” Defense
counsel objected to the alternative instruction on three bases: (1) there was no testimony that Dr.
Love misdiagnosed broken bones, (2) this instruction was confusing and misleading, and (3) the
word “misdiagnosed” came from the medical records of plaintiff’s surgeon, who was not offered
as a standard-of-care expert. Plaintiff’s counsel argued that this was an issue of semantics, as a
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failure to diagnose was the same thing as a misdiagnosis. Plaintiff’s counsel also told the trial court
he was “not sure there was ever confirmation or not about” the cellulitis and that he was “just
referencing the misdiagnosis of the broken bones.” The court ruled it would instruct the jury about
a failure to diagnose rather than a misdiagnosis. The court reasoned it did not want to confuse the
jury or have the jury read too much into the word “misdiagnosed,” as there was no evidence here
of “what you would traditionally consider a misdiagnosis.” The court added: “I think it’s improper
to use misdiagnosed here when we’re talking about the negligence of a family practice physician
and the [word] misdiagnosis came from the expert testimony of the orthopedic surgeon.” Despite
the court’s ruling, and without an objection from the defense, during closing argument, plaintiff’s
counsel asserted the jury could decide what it meant and whether it was important that plaintiff’s
surgeon used the word “misdiagnosed.”
¶7 After six days of testimony, the jury began its deliberations at 2:25 p.m. on
November 1, 2023. At 5:10 p.m., the jury submitted a note asking whether it was to read and
interpret plaintiff’s allegations of negligence “as they are written or as we preceive [sic] the
evidence.” With the parties’ agreement, the trial court instructed the jury that the instructions
contained the law and the jury’s job was to determine and apply the facts to the law. At 6:22 p.m.,
the jury sent a note asking questions about the meanings of “negligance” [sic] and “standard of
care.” With the parties’ agreement, the court instructed the jury that those terms were defined in
the instructions given previously. At 7 p.m., the jury submitted the following note: “It is very
obvious that we will not come to an agreement unanimously. Sitting in here for hours and hours
will not make a difference.” Neither the parties nor the court proposed giving a Prim instruction
at this point, which is a pattern instruction designed for purportedly deadlocked juries. See Illinois
Pattern Jury Instructions, Civil, No. 1.05 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 1.05);
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People v. Prim, 53 Ill. 2d 62 (1972). Rather, the parties agreed to provide the following response
to the jury: “Please continue your deliberations. We will check in with you shortly.” At 7:55 p.m.,
the court discharged the jury for the evening.
¶8 The jury recommenced deliberations at 9:02 a.m. on November 2, 2023. At 9:40
a.m., a juror who was never identified submitted the following handwritten note, which the parties
refer to in their appellate briefs as the “Surrender Note”:
“For the record, I will sign the verdict for the defendant Dr[.] Love. I am
firm in my support for the plaintiff Mr. Shilling.
I am only signing to end this deliberation and put an end to this. After many
hours of discussion and debate, we cannot come to a unanimous decision.
Therefore, it’s my position to sign only to end this.
I 100% believe Dr[.] Love was negligent in providing the appropriate care
to his patient. As a result, Mr[.] Schilling[’s] overall care was impacted because of
Dr[.] Love[’]s decision.
Once again, I am only agreeing to sign to end this.” (Emphases in original.)
Plaintiff’s counsel moved for a mistrial, arguing the Surrender Note showed the jury was
deadlocked and that any forthcoming verdict would be a product of undue influence. Defense
counsel, on the other hand, requested the trial court give the jury a Prim instruction. Plaintiff’s
counsel contended a Prim instruction might have been appropriate the previous night but that the
issue raised by the Surrender Note was “incurable.”
¶9 The trial court denied the motion for a mistrial and explained to the parties it would
give a Prim instruction without seeking to ascertain the numerical division of the jury. The court
denied plaintiff’s counsel’s request to attempt to determine which juror authored the Surrender
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Note. The court brought in the jury, confirmed with the foreperson that she believed the jury was
deadlocked, and provided the following Prim instruction both orally and in writing:
“The verdict must represent the considered judgment of each juror. In order
to return a verdict, it is necessary that each juror agree to it. Your verdict must be
unanimous. It is your duty, as jurors, to consult with one another and to deliberate
with a view to reaching an agreement, if you can do so without violence to
individual judgment. Each of you must decide the case for yourself, but do so only
after an impartial consideration of the evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to re-examine your own views and
change your opinion if convinced it is erroneous. But, do not surrender your honest
conviction as to the weight or effect of evidence solely because of the opinion of
your fellow jurors or for the mere purpose of returning a verdict. You are not
partisans. You are judges—judges of the facts. Your sole interest is to ascertain the
truth from the evidence in the case.”
The jury returned to its deliberations at 10:10 a.m.
¶ 10 At 10:20 a.m., the jury sent the following note: “Please provide clarification of the
phrase ‘deviation from standard of care’ and ‘professional negligence.’ Is this to be interpreted as
‘neglect?’ WE NEED A CLEAR INTERPRETATION! What exhibit is Dr[.] Honnakers [sic]
deposition? Would like to review.” With the parties’ agreement, the trial court provided the
following response to these questions: “The information requested is contained in the jury
instructions you have been provided[.] The exhibits for you to review are in your possession.”
¶ 11 While the jury was still deliberating, plaintiff’s counsel reiterated his request for a
mistrial based on the Surrender Note. The trial court denied this motion.
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¶ 12 At 11 a.m., the jury informed the trial court it had reached a verdict. Plaintiff’s
counsel requested the court poll the jurors before the verdict was announced. The court ruled it
would poll the jurors afterward by asking each person whether this was then and is now his or her
verdict. The court explained to the parties that if any juror provided a dissent or a “qualified
answer” during polling, the court would have a further discussion with that juror outside the
presence of the other jurors. Plaintiff’s counsel responded that although he did not object to this
procedure, he believed the Surrender Note indicated a juror already had a “dissenting opinion.”
Thus, plaintiff’s counsel proposed that even if all jurors indicated during polling that this was then
and is now their verdict, the court should ask each juror whether he or she wrote the Surrender
Note; upon identifying the author, the court should ask that juror whether he or she had changed
his or her opinion since writing the Surrender Note. The court denied plaintiff’s counsel’s request
for enhanced polling of this nature.
¶ 13 The jury returned a verdict for defendants signed by all 12 jurors. However, the
foreperson also signed an incomplete verdict form for plaintiff before crossing out her name. The
trial court’s clerk asked each juror whether this was then and is now his or her verdict. All jurors
responded, “Yes.” The court discharged the jury but asked the foreperson to stay. Upon
questioning by the court, the foreperson explained she signed the verdict form for plaintiff
erroneously. She confirmed that the defense verdict was her decision, and nobody forced her or
coerced her to sign a verdict for defendants.
¶ 14 After the trial court discharged the foreperson, plaintiff’s counsel stated for the
record that juror No. 34 (who was not the foreperson) gave “a clear and obvious hesitation” and
sighed loudly before saying “Yes” to the clerk’s question during polling. Neither defense counsel
nor the court disputed plaintiff’s counsel’s representation that juror No. 34 hesitated and sighed.
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Plaintiff’s counsel renewed his motion for a mistrial and asked the court not to accept the verdict.
The court denied those requests, reasoning that (1) sentiments like those documented in the
Surrender Note are likely often expressed during jury deliberations though not reduced to writing
and (2) it would improperly delve into the jury’s decision-making process to question jurors after
they answered “Yes” to the clerk’s polling question. The court entered a judgment on the verdict.
¶ 15 Plaintiff filed a postjudgment motion, which the trial court denied. The court
reconfirmed its views that it appropriately (1) gave a Prim instruction in response to the Surrender
Note, (2) denied plaintiff’s counsel’s request for enhanced polling, and (3) refused to instruct the
jury using the word “misdiagnosed.” Plaintiff filed a timely notice of appeal.
¶ 16 II. ANALYSIS
¶ 17 A. Requests for a Mistrial
¶ 18 Plaintiff maintains the trial court abused its discretion by failing to declare a mistrial
upon receiving the Surrender Note. Plaintiff’s central points are: (1) he was deprived of his right
to a unanimous jury verdict, as the Surrender Note showed that a juror disagreed with the verdict
and would side with the majority merely to end deliberations; (2) the Surrender Note was
indicative of juror misconduct; (3) the Prim instruction was inherently coercive in light of the
Surrender Note and because the jury was already hopelessly deadlocked; and (4) the verdict was
an improper “compromise verdict.” A common theme through plaintiff’s argument is that the juror
who authored the Surrender Note made a promise, guarantee, or assurance to return a verdict based
on improper considerations. Plaintiff submits this juror fulfilled such a promise and that it would
be speculation to assume the juror changed his or her opinions during deliberations after receiving
the Prim instruction.
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¶ 19 Defendants respond that the trial court properly denied plaintiff’s counsel’s motions
for a mistrial and provided a Prim instruction. In defendants’ view, plaintiff merely speculates that
the juror who wrote the Surrender Note did not change his or her opinions during deliberations
after receiving the Prim instruction.
¶ 20 Generally, “[a] mistrial should be granted when there is an occurrence of such
character and magnitude as to deprive a party of a fair trial and the moving party demonstrates
actual prejudice as a result.” Tirado v. Slavin, 2019 IL App (1st) 181705, ¶ 31. One such example
is where a trial court determines the jury is “hopelessly deadlocked.” People v. Wolf, 178 Ill. App.
3d 1064, 1066 (1989). Whether to declare a mistrial is a matter committed to the “sound discretion
of the trial court.” Slavin, 2019 IL App (1st) 181705, ¶ 29. A reviewing court will not reverse such
a decision absent an abuse of discretion, which occurs where “no reasonable person would take
the view adopted by the trial court.” Slavin, 2019 IL App (1st) 181705, ¶ 29.
¶ 21 Trial courts are in the best position to evaluate whether continued deliberations will
allow the jury to reach a just verdict. People v. Kimble, 2019 IL 122830, ¶ 37. Some factors a court
may consider in deciding whether to declare a mistrial based on jury deadlock include:
“ ‘(1) statements from the jury that it cannot agree, (2) the length of the deliberations, (3) the length
of the trial, (4) the complexity of the issues, (5) the jury’s communications to the judge, and (6) the
potentially prejudicial impact of continued forced deliberations.’ ” People v. Richardson, 2022 IL
App (2d) 210316, ¶ 40 (quoting Kimble, 2019 IL 122830, ¶ 38).
¶ 22 If a trial court does not believe a mistrial is warranted based on deadlock, the court
must avoid employing “coercive means” to pressure the jury to reach a verdict. Kimble, 2019 IL
122830, ¶ 37. One historically common method of coercion was to tell jurors who held a minority
viewpoint they should reevaluate their positions and consider that the jurors in the majority heard
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the same evidence. Prim, 53 Ill. 2d at 73. Sensitive to the possibility of coercion, in Prim, our
supreme court adopted the American Bar Association’s standards for addressing potentially
deadlocked juries. Prim, 53 Ill. 2d at 75-76. Those standards are codified as IPI Civil No. 1.05:
“The verdict must represent the considered judgment of each juror. In order
to return a verdict, it is necessary that each juror agree to it. Your verdict must be
unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with
a view to reaching an agreement, if you can do so without violence to individual
judgment. Each of you must decide the case for yourself, but do so only after an
impartial consideration of the evidence with your fellow jurors. In the course of
your deliberations, do not hesitate to re-examine your own views and change your
opinion if convinced it is erroneous. But, do not surrender your honest conviction
as to the weight or effect of evidence solely because of the opinion of your fellow
jurors or for the mere purpose of returning a verdict.
You are not partisans. You are judges—judges of the facts. Your sole
interest is to ascertain the truth from the evidence in the case.”
¶ 23 Upon a close review of the circumstances here, we hold that the trial court did not
abuse its discretion by denying plaintiff’s counsel’s requests for a mistrial. The parties took six
days to present their evidence, much of which was medical testimony. Approximately four and a
half hours into its first day of deliberations on November 1, 2023, the jury submitted a note that
stated: “It is very obvious that we will not come to an agreement unanimously. Sitting in here for
hours and hours will not make a difference.” Although the court would have been within its
discretion to give the Prim instruction at this point, neither party asked for such instruction. Rather,
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cognizant that the jury would soon be sent home for the evening, the parties agreed to tell the jury:
“Please continue your deliberations. We will check in with you shortly.”
¶ 24 Thirty-eight minutes after the jury recommenced its deliberations on November 2,
2023, the trial court received the Surrender Note:
“For the record, I will sign the verdict for the defendant Dr[.] Love. I am
firm in my support for the plaintiff Mr. Shilling.
I am only signing to end this deliberation and put an end to this. After many
hours of discussion and debate, we cannot come to a unanimous decision.
Therefore, it’s my position to sign only to end this.
I 100% believe Dr[.] Love was negligent in providing the appropriate care
to his patient. As a result, Mr[.] Schilling[’s] overall care was impacted because of
Dr[.] Love[’]s decision.
Once again, I am only agreeing to sign to end this.” (Emphases in original.)
Contrary to what plaintiff asserts, the Surrender Note was not necessarily a promise, guarantee, or
assurance that the author was intent on returning a verdict for an improper purpose. A different
reasonable interpretation is that the author simply wanted to get the court’s attention about the
perceived deadlock, especially considering the court did not provide any guidance when the jury
first declared itself deadlocked the previous night. Significantly, after approximately six hours of
deliberations, the jury did not return a verdict contemporaneously with the Surrender Note, but
instead awaited a response from the court. This strongly suggests the Surrender Note was a plea
for guidance rather than confirmation that the author had truly and permanently abandoned his or
her duties and convictions. Although plaintiff is correct that the Surrender Note was not something
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that is “routine” in a jury trial, the court reasonably rejected plaintiff’s counsel’s suggestion that
the situation was incurable and required declaring an immediate mistrial.
¶ 25 For the same reasons, plaintiff’s claim that the Surrender Note evinced juror
misconduct is unpersuasive. “Courts should be exceedingly vigilant and careful that there is no
misconduct on the part of jurors that would reflect any question on the honesty of their
performance.” Miller v. Scandrett, 326 Ill. App. 631, 637 (1945). Here, plaintiff contends that
“(1) the juror assured the Court he was going to enter a verdict solely to end deliberations” and
“(2) this statement represents a clear unwillingness to continue deliberations or deliberate in good
faith in such a way where the author was willing to reverse his or her opinion.” However, the juror
who authored the Surrender Note plainly was taking his or her duties seriously, as he or she was
passionate at that point in time, based on the evidence presented, that plaintiff proved his
malpractice claim. This is a far cry from United States v. Fattah, 914 F.3d 112, 140-43 (3d Cir.
2019), a case plaintiff cites in which a juror purportedly had an axe to grind with the government,
refused to listen to other jurors, screamed at them, put his hand on a fellow juror, and told a deputy
he was intent on a hung jury. Here, the trial court reasonably viewed the Surrender Note as an
indication the jury continued to view itself as deadlocked, not that a juror had committed
misconduct.
¶ 26 The trial court was careful to follow the procedures outlined in the committee notes
to IPI Civil No. 1.05 and to avoid any response to the Surrender Note that could be deemed
coercive. For example, plaintiff’s counsel requested the court question jurors about the Surrender
Note. The court properly refused to do so, as this likely would have identified both the author of
the note and whether the author was the lone holdout. See IPI Civil No. 1.05, Committee Note
(establishing that before giving this instruction, a court should question the foreperson about
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whether the jury is able to reach a verdict but avoid soliciting information about the numerical
division of the voting). Some courts have suggested that when a court learns both the numerical
division of a purportedly deadlocked jury and the identities of the jurors holding the minority
viewpoint, that increases the risk that jurors in the minority may feel the court is singling them out
through further instructions. See United States v. Williams, 547 F.3d 1187, 1207 (9th Cir. 2008)
(recognizing the possible coercive effect of instructing a jury to continue deliberating when the
court knows both the numerical split of the jury and the identities of the jurors holding the minority
viewpoint). Here, the court acted within its discretion by limiting its inquiry to asking the
foreperson whether she believed the jury was deadlocked. When she responded in the affirmative,
the court gave the Prim instruction.
¶ 27 Plaintiff argues the Prim instruction was unwarranted, as the jury was already
hopelessly deadlocked by the time the trial court received the Surrender Note. However, the court
had discretion to assess whether and when the jury was hopelessly deadlocked. Considering the
length and complexity of this trial, it is not surprising the jury failed to reach a consensus within
the first five or six hours of deliberations. We also consider that the jury had not been given a Prim
instruction before the court received the Surrender Note. Contra Richardson, 2022 IL App (2d)
210316, ¶¶ 41, 43 (holding that the trial court should have declared a mistrial where jury
deliberations exceeded the length of the trial testimony and where the jury declared itself
deadlocked after being given a Prim instruction).
¶ 28 Plaintiff maintains the Prim instruction itself was coercive in light of the Surrender
Note. This argument is untenable, as our supreme court adopted this instruction specifically to
avoid the possibility of undue coercion and trial courts are given broad discretion to determine
whether circumstances require a mistrial. When a court determines a jury should be instructed on
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a subject, the court must use the pattern instruction approved by our supreme court unless such
instruction “does not accurately state the law.” Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013). Thus, there
is no merit to plaintiff’s position that the Prim instruction was coercive.
¶ 29 Accordingly, we hold that the trial court acted within its discretion by giving the
Prim instruction rather than declaring a mistrial upon receiving the Surrender Note.
¶ 30 Plaintiff also presents arguments about events that happened after the trial court
gave the Prim instruction. Specifically, plaintiff argues he was deprived of his right to a unanimous
verdict, the verdict was akin to an improper “compromise verdict,” and it would be speculation to
assume the author of the Surrender Note changed his or her opinion about the case during
subsequent deliberations. These arguments are unpersuasive. Plaintiff was not deprived of his right
to a unanimous verdict, as all 12 jurors signed a verdict for the defense and all jurors answered in
the affirmative when asked whether this was then and is now their verdict. Additionally, in a
strictly legal sense, an improper “compromise verdict” is where a jury assesses damages far lower
than what the uncontested evidence warrants, thus raising suspicions that the jury did not actually
agree about liability. See Svetanoff v. Kramer, 80 Ill. App. 3d 575, 578 (1979). Here, the jury
returned a verdict for the defense and awarded plaintiff no damages. There was no discrepancy
between liability and damages, so this does not meet the criteria for an improper “compromise
verdict.”
¶ 31 Plaintiff’s argument about speculation does not change our analysis. Juries
deliberate in private, so courts are not privy to the discussions. The premise of plaintiff’s
contention regarding speculation is that the juror who authored the Surrender Note made a promise,
guarantee, or assurance that he or she would return a verdict for the defense despite his or her
convictions and then fulfilled that promise. We repeat, an unknown juror wrote the Surrender Note
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before the trial court gave a Prim instruction, which expressly informed jurors not to surrender
their honest conviction as to the weight or effect of evidence solely because of the opinion of
fellow jurors or for the mere purpose of returning a verdict. We presume that jurors follow the
instructions given to them. First Midwest Bank v. Rossi, 2023 IL App (4th) 220643, ¶ 174. After
being given the Prim instruction, the jury continued its deliberations, asked for clarification
regarding the law governing the merits of the case, and returned a verdict for the defense. All jurors
then indicated during polling that this was then and is now their verdict. Under the circumstances,
plaintiff’s point about speculation does not convince us the court abused its discretion by denying
a mistrial.
¶ 32 B. Plaintiff’s Counsel’s Request for Additional Polling
¶ 33 Plaintiff next argues that in light of the Surrender Note, the trial court erred by
refusing to poll the jury beyond asking each juror whether this was then and is now his or her
verdict. Plaintiff submits it was also “problematic” that one juror “sighed loudly, and hesitantly
answered ‘yes’ ” during poling. Plaintiff notes that the court questioned the foreperson about
coercion, and he contends the court should have done the same for all the jurors. Plaintiff proposes
that if additional polling of the jury was inappropriate, that only supports his previous argument
that the court should have declared a mistrial upon receiving the Surrender Note.
¶ 34 Defendants respond that the trial court properly refused to conduct further polling
of the jury after each juror answered “Yes” to the clerk’s question. According to defendants, pauses
and sighs do not require additional polling. Defendants argue that additional polling would have
intruded on the jurors’ decision-making process.
¶ 35 Our supreme court has said the following about polling juries:
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“When a jury is polled, each juror should be questioned individually as to
whether the announced verdict is his own. The poll should be conducted so as to
obtain an unequivocal expression from each juror. [Citation.] The very purpose of
the formality of polling is to afford the juror, before the verdict is recorded, an
opportunity for free expression unhampered by the fears or the errors which may
have attended the private proceedings of the jury room. [Citation.] In conducting
the poll, each juror should be examined to make sure that he truly assents to the
verdict. [Citation.]
The trial court may use its discretion in selecting the specific form of
question to be asked in the polling process as long as a juror is given the opportunity
to dissent. The double-barreled question used in this case, ‘Was this then and is this
now your verdict?’ has often been used in Illinois. [Citation.] We see nothing wrong
with using this question in polling the jury. However, if a juror indicates some
hesitancy or ambivalence in his answer, then it is the trial judge’s duty to ascertain
the juror’s present intent by affording the juror the opportunity to make an
unambiguous reply as to his present state of mind. [Citation.] Jurors must be able
to express disagreement during the poll or else the polling process would be a farce
and the jurors would be bound by their signatures on the verdict. Before the final
verdict is recorded, a juror has the right to inform the court that a mistake has been
made, or to ask that the jury be permitted to reconsider its verdict, or to express
disagreement with the verdict returned. If the trial judge determines that any juror
does dissent from the verdict submitted to the court, then the proper remedy is for
the trial court, on its own motion if necessary, to either direct the jury to retire for
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further deliberations [citation], or to discharge it [citation].” (Internal quotation
marks omitted.) People v. Kellogg, 77 Ill. 2d 524, 527-29 (1979).
Nevertheless, courts “must be careful not to make the polling process another arena for
deliberations.” Kellogg, 77 Ill. 2d at 529.
¶ 36 When reviewing a challenge to polling procedures, we must keep in mind that the
trial court was tasked with determining whether each juror freely assented to the verdict. Kellogg,
77 Ill. 2d at 529. Whereas we review the cold record, the trial court heard each juror’s response
and observed each juror’s demeanor and tone of voice. Kellogg, 77 Ill. 2d at 529. We will overturn
a verdict based on polling procedures only where “the interrogation precludes the opportunity to
dissent or if the record reflects that the juror in the poll has not in fact assented to the verdict.”
Kellogg, 77 Ill. 2d at 529. “A trial court’s determination as to a juror’s voluntariness of his assent
to the verdict will not be set aside unless the trial court’s conclusion is clearly unreasonable.”
People v. Cabrera, 116 Ill. 2d 474, 490 (1987).
¶ 37 We hold that the trial court’s method of polling the jury was not clearly
unreasonable and did not amount to an abuse of discretion. The question the clerk asked each
juror—whether this was then and is now his or her verdict—is a standard polling question that has
been approved by our courts. See Kellogg, 77 Ill. 2d at 528 (our supreme court saw “nothing
wrong” with this question); People v. Carter, 2020 IL App (3d) 170745, ¶¶ 15, 28 (finding no
defect in polling where each juror answered in the affirmative when asked, “ ‘[W]as this your
verdict when you signed it and is it still your verdict[?]’ ”). Significantly, no juror here responded
to the polling question by manifesting dissent to the verdict or providing an ambiguous answer.
Contra Kellogg, 77 Ill. 2d at 529-30 (additional polling was required where a juror asked during
polling whether she could change her vote); People v. Beasley, 384 Ill. App. 3d 1039, 1044-45,
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1049 (2008) (additional polling was required where a juror responded to the question “ ‘[I]s this
your verdict?’ ” by shaking his head and saying, “ ‘Um—I have to say, yes, I guess.’ ”). We
recognize the parties seem to agree that juror No. 34 paused and sighed before answering “Yes”
when asked whether this was and is his verdict. We remain mindful that the trial court had the
opportunity to hear this juror’s response and to observe his demeanor and tone of voice (Kellogg,
77 Ill. 2d at 529) but did not discern a need to question him further. We cannot substitute our
judgment for the trial court’s as to whether juror No. 34 exhibited such a degree of hesitancy during
his response as to justify further questioning.
¶ 38 Moreover, plaintiff directs our attention to no case holding that a juror pausing or
sighing during polling requires a trial court to continue polling that juror. To the contrary, case law
establishes that a juror must either express dissent to the verdict or provide an ambiguous response
to require the court to continue polling that juror. See People v. McDonald, 168 Ill. 2d 420, 461,
463 (1995) (no additional polling was necessary where a juror said that, “[r]eluctantly,” this was
and is his verdict at a death sentence hearing); Cabrera, 116 Ill. 2d at 489-90 (where a juror
answered “Yes” when asked whether this was and is her verdict, there was no need to conduct
further polling, even though this juror also attempted to explain herself before being cut off by the
trial court); Ferry v. Checker Taxi Co., 165 Ill. App. 3d 744, 748, 753 (1987) (although a juror
initially “expressed some doubt as to the verdict” when questioned by defense counsel, because
all jurors subsequently told the trial court that this was then and is now their verdict, there was no
need for additional polling); People v. Herron, 30 Ill. App. 3d 788, 789, 791-92 (1975) (no error
in accepting a verdict where one juror responded to the question “ ‘Was this and is this now your
verdict?’ ” by saying, “ ‘It wasn’t, but it is.’ ”). As stated in People v. Hill, 14 Ill. App. 3d 20, 22
(1973): “We do not see how hesitating before answering ‘Yes’ can be construed to be an answer
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of ‘No.’ If the hesitation proves anything it is that the juror was careful about her answer.” Here,
the purpose of polling was satisfied, as the jurors each had an “ ‘opportunity to disclose any
coercion, mistake, or dissention from the verdict announced.’ ” Carter, 2020 IL App (3d) 170745,
¶ 28 (quoting People v. Williams, 97 Ill. 2d 252, 308 (1983)).
¶ 39 In arguing that the polling was insufficient, plaintiff relies heavily on the
circumstances surrounding the Surrender Note. In his reply brief, plaintiff goes so far as to assert:
“The fact the Surrender Note was issued prior to polling should be treated as if one of the jurors
had read the contents of the Surrender Note verbatim into the record during polling before stating
‘yes.’ ” However, plaintiff cites no case law indicating that events occurring before the jury reaches
a verdict are relevant to a challenge of polling procedures. As we discussed in the preceding
section, a juror wrote the Surrender Note before the trial court gave a Prim instruction, before the
jury reached a verdict, and before the court polled the jury about the verdict. By obtaining
affirmative responses from each juror indicating this was then and is now their verdict, the court
assured there was no dissent to the verdict and that it was not the product of coercion. That is what
the law governing polling requires.
¶ 40 Plaintiff proposes the trial court should have continued its polling to obtain “an
affirmative statement or documentation by the author [of the Surrender Note] that he or she
reconsidered his or her position and was signing the verdict form for a proper reason in accordance
with the author’s beliefs and oath as a juror.” However, absent a manifestation of dissent or an
ambiguous answer during polling, the court reasonably determined that identifying and
interrogating the author of the Surrender Note was unnecessary. Again, a court “must be careful
not to make the polling process another arena for deliberations.” Kellogg, 77 Ill. 2d at 529; see
Freeman v. City of Chicago, 2017 IL App (1st) 153644, ¶¶ 23-28, 75 (finding no abuse of
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discretion where (1) the jury returned an initial verdict, (2) a juror indicated during polling that she
was under duress and did not want this to be her verdict, (3) the trial court allowed the jury to
continue deliberating the next morning, (4) the jury returned a second identical verdict after only
five to seven additional minutes of deliberating, (5) all jurors indicated that this was their verdict,
and (6) the trial court entered judgment on the second verdict).
¶ 41 The trial court’s decision to ask additional questions of the foreperson does not
change our analysis. The foreperson signed conflicting verdict forms but crossed her name out on
one. The court acted within its discretion by ensuring the foreperson meant to sign a verdict for
the defense. The circumstances did not require the court to conduct a broader inquiry of the entire
jury to ascertain the author of the Surrender Note.
¶ 42 C. Jury Instruction
¶ 43 Finally, plaintiff argues the trial court erred by refusing to use the word
“misdiagnosed” in an instruction outlining plaintiff’s allegations of negligence. According to
plaintiff, there was a basis in the evidence to use the word “misdiagnosed.” Citing Willis v.
Khatkhate, 373 Ill. App. 3d 495, 504-05 (2007), plaintiff further submits that failures to “make the
ultimate diagnosis” and to “offer proper treatment” inherently constitute a misdiagnosis. Citing
one of the jury notes, plaintiff asserts that “the jurors were struggling to understand” the instruction
containing the phrase “failed to diagnose.”
¶ 44 Defendants respond that the trial court properly used the phrase “failed to diagnose”
rather than “misdiagnosed.” According to defendants, the verdict for the defense shows the jury
determined Dr. Love did not negligently fail to diagnose plaintiff’s fractures, which means there
is no issue about any misdiagnosis. Defendants submit that plaintiff’s point about “misdiagnosed”
being synonymous with “failed to diagnose” proves plaintiff suffered no prejudice from the way
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the court instructed the jury (“[I]f the terms are interchangeable and the same, it would not have
made a difference.”).
¶ 45 “[C]ivil litigants are entitled to have the jury instructed on the issues presented, the
applicable legal principles, and the facts that must be proved to support a verdict.” Bailey v. Mercy
Hospital & Medical Center, 2021 IL 126748, ¶ 41. “ ‘While the threshold for permitting an
instruction in a civil case is modest, the standard for reversing a judgment based on failure to
permit an instruction is high,’ ” as the trial court has discretion as to which instructions to use.
Bailey, 2021 IL 126748, ¶ 41 (quoting Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007)). When
determining whether the court abused its discretion, we consider whether the instructions, taken
as a whole, were sufficiently clear, not misleading, and fairly and correctly stated the law. Bailey,
2021 IL 126748, ¶ 42. “Ultimately, a reviewing court should grant a new trial only when the trial
court’s refusal to give a tendered jury instruction results in serious prejudice to the party’s right to
a fair trial.” Bailey, 2021 IL 126748, ¶ 42.
¶ 46 We hold that the trial court did not abuse its discretion when instructing the jury.
Both versions of the subject instruction plaintiff tendered apparently were derived from Illinois
Pattern Jury Instructions, Civil, No. 20.01 (approved Aug. 24, 2023), which identifies the issues
in the pleadings and directs courts to “[s]et forth in simple form without undue emphasis or
repetition those allegations of the complaint as to the negligence of the defendants which have not
been withdrawn or ruled out by the court and are supported by the evidence.” (Emphases omitted.)
In his complaint, plaintiff alleged Dr. Love “[f]ailed to diagnose” his fractures. The trial evidence
was undisputed that Dr. Love never diagnosed fractures, but instead treated plaintiff with
antibiotics for cellulitis. Plaintiff’s counsel told the court during the discussion on the subject jury
instruction that he was “not sure there was ever confirmation or not about” the cellulitis and that
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he was “just referencing the misdiagnosis of the broken bones.” Given that plaintiff’s counsel
conceded it was unknown whether plaintiff had cellulitis when he saw Dr. Love, the word
“misdiagnosed” had the potential to mislead or confuse the jury, inviting the jury to focus on
whether plaintiff had cellulitis when the real dispute was whether Dr. Love was negligent for
missing the fractures. The court also appropriately recognized that part of plaintiff’s counsel’s
basis for wanting to use the word “misdiagnosed” was that plaintiff’s surgeon, who was not a
standard-of-care expert, used that word. Furthermore, plaintiff’s reliance on Willis does not
convince us that the court abused its discretion under the circumstances presented. The appellate
court in Willis addressed a question regarding tort immunity, not a discretionary ruling on a jury
instruction.
¶ 47 Plaintiff has also failed to demonstrate prejudice from the way the trial court
instructed the jury. His assertion that the jury struggled to understand the subject instruction is
unfounded, as the jury never asked any question specifically about the phrase “failed to diagnose.”
Moreover, if plaintiff is correct that failure to diagnose is inherently a misdiagnosis, then he
suffered no prejudice from the court using a synonymic phrase. We further note that during closing
argument, plaintiff’s counsel asserted the jury could decide what it meant and whether it was
important that plaintiff’s surgeon used the word “misdiagnosed” in her medical records. Thus,
despite the court’s ruling regarding the subject jury instruction, plaintiff got his point across to the
jury that he believed Dr. Love misdiagnosed him.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the trial court’s judgment.
¶ 50 Affirmed.
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