Fakes v. Eloy

Illinois Official Reports

Appellate Court

Fakes v. Eloy, 2014 IL App (4th) 121100

Appellate Court MARY FAKES, as Special Administratrix for the Estate of Laura

Caption Alice Powell, Deceased, Plaintiff-Appellant, v. VICTOR ELOY,

M.D.; and INTERNAL MEDICINE SUBSPECIALTY ASSOCI-

ATES, LTD., Defendants-Appellees.

District & No. Fourth District

Docket No. 4-12-1100

Filed March 12, 2014

Held In a medical malpractice action alleging that the treatment defendant

(Note: This syllabus provided to plaintiff’s decedent for bleeding esophageal varices did

constitutes no part of the not comport with the medical standard of care, the verdict for

opinion of the court but defendant was reversed and the cause was remanded for a new trial,

has been prepared by the since the record showed that the critical issue in the case was the cause

Reporter of Decisions of decedent’s death and defendant violated Supreme Court Rule 213

for the convenience of by stating in his deposition that decedent’s death was caused by

the reader.) bleeding esophageal varices but, at trial, he testified that he was not

sure what caused her death, that “some other” nonspecific factors

contributed to her death and that bleeding esophageal varices were not

the cause of her death, and defendant’s failure to supplement or amend

his deposition testimony constituted a violation of Rule 213

warranting reversal.

Decision Under Appeal from the Circuit Court of Macon County, No. 06-L-183; the

Review Hon. Thomas E. Little, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on Lisa Corwin (argued), of Wylder Corwin Kelly LLP, of Bloomington,

Appeal for appellant.

Charles C. Hughes (argued) and Katie W. Baggett, both of Hughes &

Tenney, L.L.C., of Decatur, for appellees.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Justices Pope and Holder White concurred in the judgment and

opinion.

OPINION

¶1 In November 2006, plaintiff, Mary Fakes, as special administratrix for the estate of Laura

Alice Powell, deceased, filed a medical malpractice suit against defendants, Victor Eloy, M.D.,

and his principal, Internal Medicine Subspecialty Associates, Ltd. (hereinafter, defendants or

Eloy). In March 2012, a jury returned a verdict in Eloy’s favor.

¶2 Fakes appeals, arguing that the trial court (1) erred by failing to impose sanctions against

Eloy for violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and (2) abused its

discretion by admitting (a) evidence under the rule of completeness, (b) the testimony of two

medical experts with whom defense counsel purportedly engaged in prohibited ex parte

communications in violation of the doctrine announced in Petrillo v. Syntex Laboratories, Inc.,

148 Ill. App. 3d 581, 499 N.E.2d 952 (1986) (Petrillo doctrine), (c) hearsay evidence, and (d)

evidence the court had barred. Fakes also argues that the court violated her right to a fair trial

by refusing to strike four prospective jurors for cause. For the reasons that follow, we reverse

and remand.

¶3 I. BACKGROUND

¶4 A. Prologue

¶5 On November 26, 2004, decedent, who was 63 years old, sought emergency medical care

because she had earlier vomited a considerable amount of blood. The following morning, she

died as a result of bleeding veins in her esophagus (a condition known as bleeding esophageal

varices). Fakes sued, claiming that the care Eloy provided to decedent did not comport with the

medical standard of care. The jury later returned a verdict in Eloy’s favor.

¶6 Because Fakes’ claims concern multiple issues that occurred before and during the six-day

trial in this case, and given the length of the record in this case, we limit our discussion to the

facts necessary to place the parties’ arguments in context.

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¶7 B. Voir Dire

¶8 At the beginning of jury selection, the trial court identified by name potential witnesses

who were expected to testify, including Eloy, decedent’s gastroenterologist, and George

Duncan, decedent’s primary care physician. After providing the venire a brief description of

the nature of the case, the court asked a series of typical voir dire questions to a panel of 14

veniremembers. The court then permitted the parties to pose questions to the panel and specific

veniremembers. The court and parties would then adjourn to the judge’s chambers to discuss

the panel at issue. In this case, the aforementioned process was repeated with three

panels–each comprised of 14 veniremembers–to empanel a 12-member jury.

¶9 1. The First Venire Panel

¶ 10 During questioning of the first panel, Fakes’ counsel asked for a show of hands to the

question, “Who doesn’t like lawsuits?”

¶ 11 Veniremember A opined that we live in a litigious society, adding, “I think everybody is

very quick to want to go to court.” Counsel then asked whether veniremember A had a bias

against lawsuits, and he responded, “if there is justification, I think it’s okay. But sometimes I

think that *** they’re too quick to file and sometimes there’s not any merit there.”

Veniremember B expressed her “strong” belief that “more and more everybody is just finding

ways to go to court just to get money.” Veniremember B did not believe she had a bias against

litigation but was merely noting that it was increasing. Veniremembers A and B agreed that

Fakes’ suit “start[s] off a little bit behind” because of their respective opinions. Despite their

beliefs, both stated that they would decide the case based on the evidence presented.

¶ 12 Fakes later moved to strike veniremembers A and B for cause, noting their attitude toward

lawsuits and their belief that Fakes’ suit starts out behind. Eloy objected, noting the responses

the veniremembers expressed regarding their specific roles as jurors as opposed to their

general beliefs on litigation. The trial court denied Fakes’ motions to strike for cause.

Thereafter, Fakes used two of her five peremptory challenges to dismiss both veniremembers.

¶ 13 2. The Second Venire Panel

¶ 14 Veniremember C, a registered nurse, knew both Eloy and Duncan because she had cared

for their hospital patients. She characterized both as “good doctors” and said her relationships

with Eloy and Duncan would not affect her impartiality. Veniremember D, a molecular

biologist, (1) baby-sat the children of Eloy’s counsel “years ago” and (2) worked with Eloy on

a medical-research project. Although veniremember D had formed an opinion of both men, she

stated that she could set aside those personal opinions and decide the case on the facts

presented.

¶ 15 Fakes later moved to strike both veniremembers C and D, citing their respective

relationships. Eloy objected, arguing that both veniremembers clearly stated they would be

impartial jurors. The trial court denied Fakes’ motions to strike for cause. Fakes responded by

using a third peremptory challenge to dismiss veniremember C.

¶ 16 3. The Third Venire Panel

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¶ 17 After answering questions that the trial court posed to the entire panel, veniremember G.M.

informed Fakes that she could award $500,000 if the law and evidence supported such a

verdict. During Eloy’s questioning, G.M. explained that she had recently retired from her job

as a bookkeeper in Decatur Township’s welfare division.

¶ 18 4. The Composition of the Jury

¶ 19 During consideration of the third panel, the trial court informed the parties that eight

veniremembers had been selected as jurors and four selections remained. When the trial court

tendered to Fakes four possible jurors, one of whom was veniremember D, Fakes used her

fourth peremptory challenge to dismiss her. Fakes then used her fifth–and final–peremptory

challenge to dismiss veniremember D’s replacement. Eloy then used a peremptory challenge to

dismiss a veniremember that the court then replaced with G.M. Eloy accepted the four

veniremembers tendered. Fakes’ counsel responded, as follows:

“I want to make a record that I would have struck *** [G.M.] if I had another

peremptory because I would have used one of my perempts [sic] on her. *** I

understand I don’t have one, but I want to make a record on that. I never did accept that

panel.”

¶ 20 C. The Pertinent Trial Evidence Presented by the Parties

¶ 21 1. Fakes’ Evidence

¶ 22 Fakes called Eloy to testify as an adverse witness in her case in chief. Eloy, a

board-certified physician in internal medicine and gastroenterology, testified that on

November 22, 2004, five days before decedent died, he examined her by performing an upper

endoscopy and a colonoscopy. An upper endoscopy is a procedure that enables a physician to

view the esophagus, stomach, and portions of the small bowel using a thin, flexible scope

inserted through the mouth. The colonoscopy allows examination of the colon by inserting a

different type of scope through the anus.

¶ 23 Eloy’s preoperative diagnosis was that decedent suffered from “[c]irrhosis of the liver

secondary to hepatitis C.” Eloy explained that in the mid-1980s, decedent contracted hepatitis

C from a blood transfusion. In his November 22, 2004, operative report, documenting the

results of his separate endoscopy procedures, Eloy diagnosed decedent with a “[g]rade II [of

IV] esophageal [varices].” Eloy confirmed that bleeding esophageal varices can cause death if

the blood flow is not stopped by performing an endoscopic variceal banding procedure. Eloy

acknowledged that some physicians perform the banding procedure even when the esophageal

varices are not bleeding.

¶ 24 On November 26, 2004, decedent called Duncan, complaining of vomiting “a large amount

of blood.” Duncan advised her to go to the Decatur Memorial Hospital emergency room (ER).

When she arrived, ER personnel notified Eloy. At about 11:30 p.m., Eloy examined decedent.

That examination revealed that decedent had bled from her gastrointestinal tract. Eloy opined

that decedent’s esophageal varices had bled earlier but had stopped bleeding by the time he

examined her because decedent was not (1) vomiting blood, (2) passing blood clots through the

rectum, or (3) experiencing “dark tarry stools,” which were symptoms of such a condition.

Eloy also noted that decedent’s grade II esophageal varices were small, which would not create

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enough pressure to cause a rupture. Eloy did not perform an upper endoscopy on decedent,

which he admitted would have confirmed whether bleeding was occurring.

¶ 25 Because decedent was stable at that time, Eloy prescribed medication to slow decedent’s

blood flow, ordered decedent’s transfer to the intensive care unit (ICU), and scheduled an

“endoscopic evaluation *** with variceal banding” for 10:30 a.m. the following day. In his

consultation report, Eloy diagnosed decedent, in part, with “[g]astrointestinal bleed suspect

secondary to esophageal [varices].” Eloy then returned home.

¶ 26 At approximately 1:30 a.m. on November 27, 2004, ER personnel called Eloy at his home

and informed him that decedent had “developed some abdominal pain.” Eloy prescribed the

medication Demerol. At 5:08 a.m. that same day, ICU personnel called Eloy and informed him

that decedent was allergic to Demerol and that her blood hemoglobin count had dropped from

10.4–when Eloy examined her in the ER–to 6.2, which the testing technician annotated was a

“panic level” measurement. Upon learning of decedent’s hemoglobin count, Eloy suspected

that she had been bleeding since 2 a.m. Eloy prescribed morphine, ordered a blood transfusion,

and realized that he would have to immediately perform the endoscopic variceal banding

procedure. Five minutes later, Eloy called the ICU and ordered an X-ray of decedent’s

abdomen. Eloy suspected that some other medical issue was occurring because decedent was

not exhibiting the aforementioned symptoms of bleeding esophageal varices. Eloy then

showered, trimmed his beard, and dressed, which he estimated took half an hour.

¶ 27 At 7:30 a.m. on November 27, 2004, decedent had a “massive [gastrointestinal] bleed.” At

8:15 a.m., Duncan, who had responded to the ICU’s emergency “code blue,” informed

decedent’s family that her medical condition was grave. At 8:21 a.m., decedent died. At 11:40

a.m., Eloy entered a physician’s progress note, confirming that he had dictated a final summary

of decedent’s condition. Eloy admitted that he arrived at the hospital sometime after decedent

died. Eloy’s final diagnosis of decedent’s condition was a “massive upper gastrointestinal

bleed presumed secondary to esophageal varices.”

¶ 28 During Fakes’ examination of Eloy, the following exchange occurred:

“[FAKES’ COUNSEL]: What is your opinion as to a reasonable degree of medical

certainty as to the cause of [decedent’s] death?

[ELOY]: I’m not exactly sure what caused her death. I believe that variceal bleed

had something to do with it. But the clinical presentation, something happened to

[decedent] around two o’clock in the morning that changed the clinical picture entirely.

***

[FAKES’ COUNSEL]: Page 41. Do you remember being asked this question and

giving this answer at your [August 2008 discovery] deposition: ‘Q[uestion]: So to a

reasonable degree of medical certainty, you believe the esophageal varices bleed

caused her death? A[nswer]: Yes.’

[ELOY]: If you read other parts of the deposition, I also mention that there was

[sic] some other factors that contributed to her death. I wasn’t specific. I did say that

something else happened. ***

***

[FAKES’ COUNSEL]: *** In order for an opinion to be–I don’t know what [the]

word would be–

[ELOY]: Accepted.

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[FAKES’ COUNSEL]: Accepted. It needs to be a reasonable degree of medical

certainty. You’re familiar with that concept, right?

[ELOY]: I am.

[FAKES’ COUNSEL]: Not 100[%] certainty, but the reasonable degree of medical

certainty with which you practice medicine; do you understand that concept?

[ELOY]: I do understand that concept.

[FAKES’ COUNSEL]: And I had the opportunity at your deposition to ask you to a

reasonable degree of medical certainty what did you think caused [decedent’s] death.

What was your answer?

[ELOY]: Esophageal varices.

[FAKES’ COUNSEL]: It was the bleeding of those esophageal varices that caused

her death, right?

[ELOY]: *** I think it contributed to her death, but not the cause of her death.

[FAKES’ COUNSEL]: Doctor, do you remember being asked this question, ‘So to

a reasonable degree of medical certainty, you believe the esophageal varices bleed

caused her death, correct? A[nswer]: Yes.’

[ELOY]: My answer was yes.

[FAKES’ COUNSEL]: Is it still your answer today that it’s your opinion to a

reasonable degree of medical certainty the esophageal varices bleed cause [decedent’s]

death?

[ELOY]: It is correct that it caused her death, but there [were] other circumstances

as I do mention later on in the deposition that you took that you are not reading that I

say that there [were] other contributing factors. The reason I say that is because her

clinical picture changed.

[FAKES’ COUNSEL]: What is this mysterious other thing that you believed

occurred?

[ELOY]: The differential diagnosis is quite extensive. You want me to go through

them, I will be happ[y] to.

[FAKES’ COUNSEL]: Just tell me what you told me at your deposition about this

mysterious [thing]. You’re saying that you told me at the deposition. What other cause

of death did you mention at your deposition?

[ELOY]: I did not mention any other cause of death in the deposition.”

The trial court then granted Eloy’s request for a sidebar conference. Following that conference,

Fakes resumed her examination of Eloy, as follows:

“[FAKES’ COUNSEL]: Back to where we were ***, when you were asked at your

deposition to a reasonable degree of medical certainty what caused [decedent’s] death,

you said it was your opinion it was esophageal varices that bled that caused

[decedent’s] death; is that true?

[ELOY]: Yes.

[FAKES’ COUNSEL]: You did not identify anything else at your deposition that

you had an opinion to a reasonable degree of medical certainty or you had opinion

otherwise caused her death, did you?

[ELOY]: It did not come up, no.

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[FAKES’ COUNSEL]: Is that a no then? You didn’t offer that testimony?

[ELOY]: That’s a no.”

(The record shows that during a sidebar conference, the trial court overruled Fakes’ objection

that Eloy’s testimony violated Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). The court,

however, later permitted Fakes to make a record of that objection outside of the jury’s

presence, which the court denied. We will review and consider the pertinent portions of that

hearing during our analysis of Fakes’ Rule 213 claim.)

¶ 29 Thereafter, Fakes, referring to a medical article Eloy relied on in preparation for his August

2008 discovery deposition, asked whether Eloy agreed that a 20% chance of death exists even

if an endoscopic variceal banding procedure is performed on a patient with bleeding

esophageal varices. The following exchange occurred. (To provide clarity for the following

quote, a “Child-Pugh” score predicts risk of surgical outcomes in patients with bleeding

esophageal varices. Jeffrey D. Wayne et al., Preoperative Predictors of Survival After

Resection of Small Hepatocellular Carcinomas, 235(5) Annals of Surgery, at 722-31 (2002)):

“[FAKES’ COUNSEL]: Do you agree with the fact that 20[%] can die, but the

statistics show 80[%] percent live?

[ELOY]: It’s how you read and interpret the information. If you had a Child’s A

patient with cirrhosis of the liver, they have a 90[%] chance of survival. If you have a

Child’s C that’s actively bleeding, they have a much higher mortality rate. As an

average, yes, 20[%]. But that takes all of them. The real, real sick ones and the ones that

don’t have as bad of a bleed. So there’s a big spectrum there.

[FAKES’ COUNSEL]: We never discussed–you brought up the Child’s score.

That’s something we never discussed at your deposition, is it?

***

[ELOY]: Well, I don’t know if we made inference [sic] to the Child’s classification

or not. I don’t recall.

[FAKES’ COUNSEL]: So you don’t have a recollection of that?

[ELOY]: No, but if we discussed the articles, I’m sure it’s in there.

***

[FAKES’ COUNSEL]: Okay. Here’s my question: Have you ever offered any

opinion about what [decedent’s] Child’s score was?

[ELOY]: Not to you, no.”

¶ 30 Eloy’s counsel began his cross-examination by reading a portion of Eloy’s deposition

where he mentioned the Child-Pugh score. Fakes objected, noting that unless Eloy’s counsel

was attempting to impeach Eloy or refresh his recollection, he could not read from Eloy’s

deposition. Eloy’s counsel withdrew his question and attempted to refresh Eloy’s recollection

regarding whether he mentioned the Child-Pugh score. Referring to his deposition, Eloy

confirmed that he mentioned that metric during his testimony.

¶ 31 The following exchange then occurred:

“[FAKES’ COUNSEL]: Judge, [based on] the rule of completeness, I would like

[Eloy’s counsel] to read the question and answer because there is no testimony about

what [decedent’s] Child score is.

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[ELOY’S COUNSEL]: I don’t disagree with that, I’d be happy to read the whole

thing.

*** In fact, if I may, because this is the point I was just going to go to, in the rule of

completeness, I would like to address an earlier question as well. It’s going to lead right

into the same thing, Your Honor.

THE COURT: Read it all day if you want to. That’s up to you.”

¶ 32 Reading from Eloy’s deposition, counsel then asked Eloy a series of questions regarding

survival rates. Eloy confirmed that at his deposition, he testified about other medical articles he

provided to Fakes that documented mortality rates of 20% to 40% with each episode of

bleeding esophageal varices. Eloy noted in his deposition that a 30% mortality rate was the

“most quoted number.”

¶ 33 Fakes then renewed her objection to the reading of Eloy’s deposition. The following

exchange occurred:

“THE COURT: *** [W]here do we stand?

[ELOY’S COUNSEL]: The rule of completeness allows me to put any attempt at

impeachment into context. [Fakes] tried to impeach and suggest that there wasn’t any

discussion [of] Child’s classification. That’s this next paragraph.”

Eloy’s counsel then reread the portion of Eloy’s deposition in which Eloy had earlier testified

he mentioned the Child-Pugh Score in response to a question Fakes posed.

¶ 34 Scott Lippe, a board-certified physician in internal medicine and gastroenterology,

explained that when disease prevents normal blood flow through the liver, the body finds a

different path to the heart. The most common path is through the veins in the esophagus, which

causes swelling, pressure, and eventually, uncontrolled bleeding that is life-threatening. Lippe

recommended the employment of an aggressive regime to treat patients suffering from

esophageal varices because once the bleeding starts, it becomes a “horrible challenge.”

¶ 35 Lippe opined that Eloy did not use the “knowledge, skill, and care ordinarily used by a

careful gastroenterologist” in that he failed to “address the bleeding [varices] of [decedent] in

an appropriate fashion and having not done so, he also failed to monitor [decedent] in an

appropriate fashion so that he knew what was going on.” Lippe summarized that Eloy deviated

from the proper medical standard of care in that he failed to (1) perform an endoscopy during

decedent’s ER examination, (2) identify and treat the cause of decedent’s bleeding, (3) insert a

nasogastric (NG) intubation tube to monitor decedent’s bleeding in the absence of an

endoscopy, and (4) appropriately monitor decedent to identify and treat the cause of her

bleeding. Lippe opined to a reasonable degree of medical certainty that if Eloy had complied

with the medical standard of care, decedent would have survived. Lippe concluded that

bleeding esophageal varices caused decedent’s death.

¶ 36 Lippe acknowledged that before endoscopic variceal banding emerged in the 1990s, a

procedure called sclerotherapy was employed. Eloy used this treatment approach by

administering medication to shrink the esophageal veins, which slowed decedent’s blood flow.

Eloy then scheduled decedent for a later endoscopy. Lippe also acknowledged that the medical

standard of care in 2004 did not require banding of nonbleeding grade II or III varices and

approximately 50% of variceal bleeding stops spontaneously.

¶ 37 2. Eloy’s Evidence

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¶ 38 Eloy, who was president of the Internal Medicine Subspecialty Associates, Ltd., a

gastroenterology practice comprised of himself and his two physician partners, outlined his

treatment of decedent, which began in 1985 for gastrointestinal bleeding caused by a condition

in the lower part of decedent’s colon. In July 1997, medical testing revealed that decedent had

“positive markers” for hepatitis C. The following month, decedent was diagnosed with mild

scarring of the liver. After a series of failed treatments, medical testing revealed that by May

1999, decedent had advanced cirrhosis of the liver. In April 2000, decedent discontinued

further treatments because she could not tolerate the side effects.

¶ 39 On November 17, 2004, Duncan referred decedent to Eloy because he had found

microscopic particles of blood in decedent’s stool. Eloy reaffirmed that the results of his

November 22, 2004, colonoscopy and upper endoscopy on decedent revealed she had grade II

varices, noting that decedent’s varices did not have “red spots” that signify blood clots or

evidence of superficial ulcers indicative of a “high degree of bleeding.” Following his

examination, Eloy concluded that no medical evidence existed to show that decedent would

likely bleed “in the next week or ten days or months.”

¶ 40 With regard to his earlier account of decedent’s November 26, 2004, visit to the ER, Eloy

noted that during the approximately 90 minutes he was in the ER that evening, he saw no signs

that decedent was actively bleeding. Decedent’s high blood pressure at that time, which Eloy

would expect to be low if she was bleeding, confirmed his assessment. Eloy documented that a

day earlier, decedent experienced “very dark diarrhea,” which could have been caused by

various unrelated conditions. Because decedent had bled earlier, Eloy admitted her to the ICU

for monitoring, prescribed medication to slow decedent’s blood flow, and scheduled an

endoscopy. Eloy opined that his actions to move decedent from the ER to the ICU fell within

the medical standard of care. Eloy then mentioned his 1:30 a.m. order, in which he prescribed

Demerol following the phone call from the ER.

¶ 41 Eloy’s next conversation with the hospital, specifically ICU nurse Lisa Harmon, took place

at 5:08 a.m. When Eloy attempted to explain his conversation with Harmon, Fakes objected

based on hearsay. Eloy’s counsel responded that “[t]his falls under the category of non-hearsay

operative fact because it really goes to what he did.” The trial court overruled the objection.

Eloy then testified that Harmon informed him that (1) decedent’s blood-test results revealed

that her hemoglobin count had dropped from 10.4 to a “low[-]panic level of 6.2” and (2)

decedent was “stable” at that time. Five minutes later, Eloy called the ICU and ordered an

X-ray of decedent’s abdomen because he had the feeling that “something’s going on.” Eloy

then took a shower, shaved, dressed, and traveled to the hospital. When he arrived, ICU

personnel were attempting to revive decedent. Eloy opined that his treatment of decedent on

November 26 through 27, 2004, complied with the medical standard of care. Eloy admitted

that his assessment five days before decedent died, doubting that her esophageal varices would

bleed, was incorrect.

¶ 42 During Fakes’ cross-examination, Eloy could not recall how many endoscopic variceal

banding procedures he had performed. Fakes, reading from Eloy’s deposition, noted that Eloy

had performed the endoscopic variceal banding procedure on approximately 20 to 30 patients,

which she characterized as “not a whole lot of experience.” Eloy disagreed, claiming that 20 to

30 cases “is a very good experience.” Fakes’ counsel then engaged in the following discussion

with Eloy:

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“[FAKES’ COUNSEL]: And in terms of whether or not if you would have banded

her, you *** don’t disagree with *** Lippe that you would have saved her life, do you?

[ELOY]: That’s speculation. *** [E]ven if you banded them, they can still bleed.

***

[FAKES’ COUNSEL]: You got there too late and you have never said–at your

deposition I asked you if you had an opinion and you said no, right? You don’t have an

opinion that you would not have saved her life, do you?

[ELOY]: No. I said–I don’t remember exactly what I said, but I don’t know if I

would have saved her life or not by doing that procedure.”

¶ 43 During his redirect examination, Eloy’s counsel, citing the rule of completeness, had Eloy

confirm that he testified at his deposition that although he performed the endoscopic variceal

banding procedure on approximately 20 to 30 patients experiencing bleeding esophageal

varices, he performed that surgical procedure “multiple times on the same patient.” Eloy also

confirmed that he had no opinion regarding whether decedent would have lived if he had

performed the endoscopic variceal banding procedure before decedent bled on November 27,

2004, because any answer would have been speculative.

¶ 44 Patrick Garrity, the hospital’s ER physician working on the night of November 26, 2004,

admitted that he did not remember decedent and did not know whether he personally examined

her. Garrity explained that his responsibilities included supervising several physician

assistants (PAs), whose responsibilities included seeing ER patients and accomplishing the

necessary “physical exam work.” The PAs would brief him on the patient, any test results, and

their recommended treatment plan. Garrity would review the patient’s ER chart and provide

the PAs guidance. Garrity agreed that his supervisory role did not always result in face-to-face

contact with an ER patient.

¶ 45 Decedent’s ER chart documented that on November 26, 2004, at approximately 10:37

p.m., decedent arrived at the ER, complaining of vomiting blood an hour earlier. During her

time in the ER, decedent was stable and was not experiencing any discomfort. Test results

revealed microscopic traces of blood in decedent’s stool. Garrity acknowledged that once Eloy

arrived at the ER, decedent ceased being an ER patient. Despite this change of status, the ER

continued to monitor decedent until her transfer to the ICU at approximately 2:50 a.m. on

November 27, 2004. During that time, decedent’s condition remained stable. Garrity provided

his approving initials on the last page of decedent’s ER chart, which documented the medical

steps the PA took to address decedent’s condition.

¶ 46 Duncan, decedent’s primary care physician, testified that he examined decedent

approximately every four months for her various ailments, which included diabetes, high

blood pressure, and chronic hepatitis. On November 17, 2004, Duncan referred decedent to

Eloy because he found microscopic traces of blood in decedent’s stool. Duncan then recounted

decedent’s phone call at approximately 10 p.m. on November 26, 2004, informing him of her

vomiting blood. Duncan did not travel to the ER that night, but sometime during the early

morning of November 27, 2004, an ICU nurse called, requesting to administer a drug to

prevent the possible buildup of fluid in decedent’s lungs before performing a blood

transfusion. Later that same morning, Duncan received another phone call from ICU,

informing him that decedent’s condition was “not good.” At 7:30 a.m., Duncan arrived at the

hospital and observed ICU personnel attempting to revive decedent. At some point during that

attempt, Duncan spoke with Fakes and informed her that decedent’s condition was “grave.”

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Duncan estimated that ICU personnel attempted to revive decedent for approximately one

hour.

¶ 47 Michael Uzer, a board-certified physician in gastroenterology and internal medicine, did

not agree with Lippe’s assessment. If presented with a patient in decedent’s condition on the

evening of November 26, 2004, knowing that she had grade II esophageal varices, he would

have ensured she was stable and scheduled a later endoscopic variceal banding procedure. If

the patient later lost blood, as in this case, Uzer would have attempted to restabilize the patient

by transfusing blood and performing the banding procedure earlier than expected. The

administration of additional blood would take time because quickly replenishing the blood

would result in extra pressure on the varices. Uzer estimated that a patient should have a

hemoglobin count of approximately 9.0 before performing the procedure. Uzer stressed that

patient stabilization takes priority over performing the procedure.

¶ 48 Uzer noted that decedent’s vital signs were reliable indicators of decedent’s condition,

which showed decedent was stable while in the ER. Uzer noted that decedent’s later abdominal

pain was unusual because it “didn’t really *** fit with gastroenterology hemorrhage.” This

pain suggested to Uzer that “something” in addition to decedent’s bleeding was occurring,

which Uzer said prompted Eloy to order an abdominal X-ray. Uzer did not have an opinion as

to why decedent was experiencing abdominal pain. Uzer opined to a reasonable degree of

medical certainty that from November 26 through November 27, 2004, the medical care Eloy

provided decedent complied with the medical standard of care.

¶ 49 D. The Jury’s Verdict

¶ 50 Following the presentation of evidence and argument, the jury rejected Fakes’ medical

malpractice claims and returned a verdict in Eloy’s favor.

¶ 51 This appeal followed.

¶ 52 II. ANALYSIS

¶ 53 Fakes argues that the trial court (1) erred by failing to impose sanctions against Eloy for

violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and (2) abused its discretion by

admitting (a) evidence under the rule of completeness, (b) the testimony of two medical

experts with whom defense counsel purportedly engaged in prohibited ex parte

communications in violation of the Petrillo doctrine, (c) hearsay evidence, and (d) evidence

the court had barred. Fakes also argues that the court violated her right to a fair trial by refusing

to strike four prospective jurors for cause. We address Fakes’ arguments in turn.

¶ 54 A. Fakes’ Rule 213 Objection

¶ 55 Fakes argues that the trial court erred by failing to impose sanctions against Eloy for

violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). We agree.

¶ 56 1. The Proceedings at Trial

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¶ 57 As previously noted, at the March 2012 trial, Fakes questioned Eloy as an adverse witness

in her case in chief regarding, in part, his opinion as to decedent’s cause of death. At trial, Eloy

initially responded, “I’m not exactly sure what caused her death.” Immediately thereafter,

Fakes impeached Eloy with his deposition testimony, in which he opined to a reasonable

degree of medical certainty that bleeding esophageal varices caused decedent’s death. After

completing that impeachment, the trial court adjourned the proceedings for lunch. During that

break, Fakes asked the court to entertain further the Rule 213 objection she had earlier raised

during a sidebar conference. The court agreed to hold a brief hearing on that issue.

¶ 58 At that hearing–conducted outside the presence of the jury–Fakes moved to strike Eloy’s

testimony, arguing that because Eloy failed to show where in his deposition he opined to a

reasonable degree of medical certainty that decedent’s death was caused by something other

than the bleeding esophageal varices, that testimony should be stricken and the jury should be

instructed to disregard it.

¶ 59 In response, Eloy argued that no Rule 213 violation occurred because he had consistently

disclosed that there was “something else going on.” In support of his claim, Eloy read the

following passage from his deposition:

“[FAKES’ COUNSEL]: Because the only way you would know whether or not for

sure that those esophageal varices were bleeding and how badly is to do an endoscopy,

right?

[ELOY]: Yes and No. If she was actively bleeding from a varix, she would be

vomiting blood actively. She would be passing blood rectally.

[FAKES’ COUNSEL]: What was her cause of death?

[ELOY]: Don’t know.

[FAKES’ COUNSEL]: You don’t have an opinion as to what caused her death?

[ELOY]: I believe that it could have been variceal bleed at that time.

[FAKES’ COUNSEL]: Have you heard the phrase reasonable degree of medical

certainty before?

[ELOY]: Yes, I have.”

Eloy also provided the court a quote from his November 22, 2004, operative report in which he

essentially surmised that no obvious reason existed for decedent’s abdominal pain.

¶ 60 Fakes noted that the next question she asked, which Eloy omitted from his quote, elicited

his opinion that to a reasonable degree of medical certainty, decedent’s bleeding esophageal

varices caused her death. Fakes then claimed Eloy’s operative report was not relevant to her

Rule 213 objection because it only described the colonoscopy and upper endoscopy

procedures Eloy performed five days before decedent died.

¶ 61 Thereafter, the trial court, noting that it had denied Fakes’ objection during the sidebar,

denied her Rule 213 motion without further comment.

¶ 62 2. The Pertinent Sections of Illinois Supreme Court

Rule 213 and the Standard of Review

¶ 63 “Rule 213, entitled ‘Written Interrogatories to Parties,’ governs discovery by

interrogatories, as well as disclosure of the identity of witnesses who will testify at trial.” White

v. Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309, 323, 869 N.E.2d 244, 255 (2007).

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Rule 213(f) segregates witnesses into the following three categorical types: (1) lay witnesses,

(2) independent expert witnesses, and (3) controlled expert witnesses. Ill. S. Ct. R. 213(f) (eff.

Jan. 1, 2007). Rule 213(f)(3) also provides (1) the definition of a controlled witness and (2)

requirements a party must satisfy prior to trial, as follows:

“A ‘controlled expert witness’ is a person giving expert testimony who is the party, the

party’s current employee, or the party’s retained expert. For each controlled expert

witness, the party must identify: (i) the subject matter on which the witness will testify;

(ii) the conclusions and opinions of the witness and the bases therefor; (iii) the

qualifications of the witness; and (iv) any reports prepared by the witness about the

case.” Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007).

¶ 64 The importance of a party’s compliance with the mandates contained in Rule 213(f) cannot

be overstated, given the following restriction placed upon such a witness, as provided in Rule

213(g):

“The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery

deposition, limits the testimony that can be given by a witness on direct examination at

trial. Information disclosed in a discovery deposition need not be later specifically

identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the

proponent of the witness to prove the information was provided in a Rule 213(f) answer

or in the discovery deposition. Except upon a showing of good cause, information in an

evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or

in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct. R.

213(g) (eff. Jan. 1, 2007).

Rule 213(i) mandates further that “[a] party has a duty to seasonably supplement or amend any

prior answer or response whenever new or additional information subsequently becomes

known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007).

¶ 65 The supreme court’s underlying policy in crafting Rule 213 concerned not only its efforts

to “manage the complex and important process of discovery,” but also its efforts to “avoid

surprise” and “tactical gamesmanship.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109-10,

806 N.E.2d 645, 652 (2004). “A trial court’s decision regarding whether an opinion has been

adequately disclosed such that it may be admitted into evidence is reviewed applying the

abuse-of-discretion standard.” Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d

568, 576, 755 N.E.2d 1021, 1029 (2001). Under that standard, reversal is required only if no

reasonable person would agree with the trial court’s determination. Id.

¶ 66 3. The Opinion Testimony at Issue

¶ 67 In this case, the parties do not dispute that Eloy (1) was a controlled expert witness as

defined by Rule 213(f); (2) opined in his August 2008 discovery deposition that to a reasonable

degree of medical certainty, decedent’s death was caused by her bleeding esophageal varices;

and (3) did not seasonably supplement or amend his prior deposition testimony as required by

Rule 213(i). In her brief to this court, Fakes confines her Rule 213 claim to Eloy’s testimony,

“I’m not exactly sure what caused her death,” in response to the question, “What is your

opinion as to a reasonable degree of medical certainty as to the cause of [decedent’s] death?”

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¶ 68 Eloy dismisses Fakes’ argument, claiming that she would have this court “focus on four

lines in *** Eloy’s deposition and ignore the rest.” Eloy acknowledged that during his

deposition, he opined to a reasonable degree of medical certainty that decedent’s death was

caused by her bleeding esophageal varices but asserts that this opinion does not “preclude

additional opinions as to other contributing factors.” In this regard, Eloy claims that his

deposition testimony concerning other “potential contributing factors” that could have caused

decedent’s death, was “nothing more than extrapolation or [a] logical corollary of the opinions

which he had already given, including that which was contained in the medical literature

produced by him, and provided to [Fakes] at the time of his deposition.” In support of that

position, Eloy cites Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 790

N.E.2d 67 (2003), for the proposition that a controlled expert witnesses is permitted to

elaborate on his opinion.

¶ 69 In Skubak, 339 Ill. App. 3d at 39, 790 N.E.2d at 75, the controlled expert witness’s Rule

213 disclosures revealed that the patient at issue had not developed a sore on the bottom of her

foot while she was a hospital patient. The plaintiff claimed that the trial court erred by

admitting testimony at trial that the controlled expert examined the patient’s foot during a

five-day period. Id. The trial court rejected that argument, finding that the disputed testimony

was a “logical corollary of [the controlled expert’s] disclosure.” Id. at 39, 790 N.E.2d at 76.

The appellate court affirmed. Id. at 41, 790 N.E.2d at 77.

¶ 70 Skubak is inapposite because in that case, the disputed trial testimony was consistent with

the controlled expert’s Rule 213 disclosure regarding the patient’s condition. Here, Eloy’s

claim that the other “potential contributing factors” could have caused decedent’s death

directly contradicted his deposition testimony that decedent’s death was caused by bleeding

esophageal varices.

¶ 71 In Sullivan, 209 Ill. 2d at 108, 806 N.E.2d at 651, the plaintiff’s controlled expert witness

testified consistently with his deposition testimony but added a previously undisclosed opinion

that a nurse deviated from her standard of care by not communicating effectively with another

doctor. The trial court later barred that previously undisclosed opinion. Id. On appeal, the

plaintiff argued that the “ ‘gist’ ” of her expert’s barred trial testimony was an “ ‘elaboration’

or a ‘logical corollary’ of, or ‘effectively’ implicated, [her] Rule 213 disclosure.” Id. at 109,

806 N.E.2d at 652. The supreme court rejected the plaintiff’s claim and in so doing noted that

“Rule 213 permits litigants to rely on the disclosed opinions of opposing experts and to

construct their trial strategy accordingly.” Id.

¶ 72 In this case, Fakes was entitled to rely on Eloy’s deposition testimony. See Garlock, 373

Ill. App. 3d at 326, 869 N.E.2d at 257 (the plaintiff had an absolute right to conduct her

cross-examination of the defendant’s medical expert with confidence that she knew all of his

pertinent opinions because the defendant had disclosed them in response to her written

interrogatories). If Eloy, as he contends in his brief, believed that other factors contributed to

decedent’s death, he needed to comply with the strict requirements of Rule 213(i) by

supplementing his deposition. See Foley v. Fletcher, 361 Ill. App. 3d 39, 46-47, 836 N.E.2d

667, 674 (2005) (“Rule 213 disclosures are mandatory and strict compliance is required”

(citing Sullivan, 209 Ill. 2d at 109, 806 N.E.2d at 651)). Accordingly, we conclude that (1)

Eloy’s undisclosed opinion testimony pertaining to decedent’s cause of death violated Rule

213, and (2) the trial court abused its discretion by finding otherwise. However, our analysis

does not end here.

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¶ 73 4. The Appropriate Remedy

¶ 74 In Clayton v. County of Cook, 346 Ill. App. 3d 367, 378, 805 N.E.2d 222, 232 (2003), the

First District noted that, depending on the severity of the Rule 213 violation, the opposing

party may move to (1) strike only the portion of the testimony that violates the rule–as Fakes

attempted unsuccessfully in this case–(2) strike the witness’s entire testimony and bar the

witness from testifying further, or (3) have a mistrial declared. Quoting this court’s decision in

Department of Transportation v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998), the

Clayton court stated, “ ‘[t]rial courts should be more reluctant under Rule 213 than they were

under former Rule 220 (1) to permit the parties to deviate from the strict disclosure

requirements, or (2) not to impose severe sanctions when such deviations occur.’ ” Clayton,

346 Ill. App. 3d at 378, 805 N.E.2d at 232 (quoting Crull, 294 Ill. App. 3d at 539, 690 N.E.2d

at 148).

¶ 75 The Clayton court noted further that an appropriate remedy “must ensure that the

applicable sanction allows for a fair trial rather than punish the party that committed the

violation.” Clayton, 346 Ill. App. 3d at 378, 805 N.E.2d at 233. In this vein, the court

concluded that a “mistrial is warranted when the Rule 213 violation is of such character and

magnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstrates

actual prejudice as a result.” (Internal quotation marks omitted.) Id. at 381, 805 N.E.2d at 234.

¶ 76 In this case, Fakes’ medical malpractice suit claimed that Eloy’s failure to comply with the

appropriate medical standard of care resulted in decedent’s preventable death. Thus, Fakes was

required to establish that Eloy “failed to possess and apply the knowledge and use the skill and

care ordinarily used by a reasonably well qualified physician practicing in the same or similar

localities under the circumstances similar to those shown by the evidence.” Michael H.

Graham, Graham’s Handbook of Illinois Evidence § 702.9, at 650-51 (10th ed. 2010) (citing

Illinois Pattern Jury Instructions, Civil, No. 105.01 (4th ed. 2006)).

¶ 77 Here, the cause of decedent’s death was a critical issue in determining whether Eloy

exercised the appropriate medical standard of care. As we have previously explained, in

preparing her case, Fakes had the absolute right to expect that Eloy would provide the same

opinion testimony at trial that he disclosed in his deposition–that is, his unequivocal,

unqualified opinion that to a reasonable degree of medical certainty, decedent’s death was

caused by bleeding esophageal varices. Instead, Eloy’s testimony at trial that (1) “I’m not

exactly sure what caused her death,” (2) “some other” nonspecific factors contributed to

decedent’s death, and (3) “I think [the bleeding esophageal varices] contributed to her death,

but [were] not the cause of her death” directly contradicted his deposition testimony and

resulted in prejudice that was not cured by Fakes’ thorough impeachment. Eloy’s claim that the

undisclosed opinions at issue are “nothing more than extrapolation or [a] logical corollary of

the opinions which he had already given,” is belied by the contrary literal meaning of his

undisclosed opinions and their apparent purpose, which was to distance himself from the

opinion he provided at his August 2008 discovery deposition regarding decedent’s cause of

death.

¶ 78 Although each case presents different facts that affect the imposition of the appropriate

sanction for a Rule 213 violation, we conclude that the type of violation that occurred in this

case–that is, an undisclosed opinion on a critical issue before the trier of fact–warrants

reversal. See Clayton, 346 Ill. App. 3d at 378-79, 805 N.E.2d at 233 (each case presents unique

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factual circumstances, which should be considered in determining whether a sanction for a

Rule 213 violation is imposed). Accordingly, we reverse the jury’s verdict in favor of

defendants and remand for a new trial.

¶ 79 B. The Trial Court’s Evidentiary Rulings

¶ 80 As previously outlined, Fakes also argues that the trial court abused its discretion by

admitting (1) evidence under the rule of completeness, (2) the testimony of two medical

experts with whom defense counsel purportedly engaged in prohibited ex parte

communications in violation of the Petrillo doctrine, (3) hearsay evidence, and (4) evidence

the court had barred. Although we have reversed based on a Rule 213 violation, we nonetheless

address these issues because they may recur on remand. Prior to addressing the merits of

Fakes’ evidentiary claims, we set forth the standard of review.

¶ 81 1. The Standard of Review

¶ 82 “[E]videntiary rulings are within the sound discretion of the trial court and will not be

reversed absent an abuse of discretion.” Clayton v. Planet Travel Holdings, Inc., 2013 IL App

(4th) 120717, ¶ 48, 988 N.E.2d 1110. A reviewing court will not deem a trial court’s

evidentiary rulings an abuse of discretion unless no reasonable person would take the view

adopted by the court. Guski v. Raja, 409 Ill. App. 3d 686, 698, 949 N.E.2d 695, 707 (2011).

¶ 83 2. The Trial Court’s Application of the Rule of Completeness

¶ 84 Fakes argues that the trial court abused its discretion by admitting evidence under the rule

of completeness. We disagree.

¶ 85 In Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp., 2012 IL App (1st)

102953, ¶ 71, 964 N.E.2d 731, the appellate court explained the common-law rule of

completeness, as follows:

“The rule of completeness provides that when a statement or writing has been

admitted into evidence, the remainder of the writing should be admitted in order to put

the original statement into proper context and to convey that to the jury. [Citation.] The

additional portion of the writing must relate to the same subject matter as the original

and tend to explain, qualify, or otherwise shed light on the meaning of the part already

introduced.”

Specifically, the intent of the completeness doctrine is to (1) prevent the trier of fact from being

misled, (2) place the admitted portion in its proper context so that a correct and true meaning is

conveyed, or (3) explain further the meaning of the evidence already received. People v.

Craigen, 2013 IL App (2d) 111300, ¶ 45, 997 N.E.2d 743.

¶ 86 Before addressing Fakes’ evidentiary claim–that is, the admissibility of the evidence Eloy

sought to admit under the rule of completeness–we first briefly consider her underlying

contention regarding the timing of Eloy’s decision to invoke the rule. In support of her timing

claim, Fakes cites Illinois Supreme Court Rule 212(c) (eff. Jan. 1, 2011), which pertains to the

partial use of depositions and provides, as follows:

“If only a part of a deposition is read or used at the trial by a party, any other party may

at that time read or use or require him to read any other part of the deposition which

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ought in fairness to be considered in connection with the part read or used.” (Emphasis

added.)

¶ 87 Concentrating on the words “at that time,” Fakes asserts that Eloy’s counsel “never

objected under the rule of completeness or requested [Fakes’] counsel read any additional part

of the deposition when [Eloy] was being refreshed or impeached.” (Emphasis in original.)

Fakes then infers a nefarious purpose, claiming that “counsel’s tactics–sitting silently while

[Eloy] was being impeached and then standing up at a later time and reading pages of his ***

client’s deposition to the jury–were tantamount to testifying for the witness.”

¶ 88 We reject Fakes’ assertion because it is well established that the rule of completeness does

not have a timing requirement, as Fakes suggests. Instead, “where a conversation is related by

a witness, the opposing party has a right to bring out all of the conversation on

cross-examination.” In re W.D., 194 Ill. App. 3d 686, 702, 551 N.E.2d 357, 368 (1990). See

People v. Provo, 409 Ill. 63, 66-67, 97 N.E.2d 802, 804 (1951) (finding no error in permitting

pertinent portions of an oral conversation on redirect to place the testimony solicited on

cross-examination in its proper perspective). Indeed, the rule of completeness is not limited to

discovery depositions but also applies to the following broad range of evidence:

“Oral conversations, parts of written or recorded statements or in the nature of

addenda thereto, and written or recorded statements neither part of the previously

introduced written or recorded statement nor in the nature of addenda thereto may be

introduced by an opposing party on his or her next examination of the same witness,

whether cross or redirect, provided such evidence tends to explain, qualify, or

otherwise shed light on the meaning of the evidence already received.” Graham, supra

§ 106.2, at 72.

¶ 89 With regard to Fakes’ argument regarding the inadmissibility of the evidence Eloy sought

to admit under the rule of completeness, Fakes directs us to defense counsel’s redirect

examination of Eloy in his case in chief. The record shows that during that examination, Eloy’s

counsel invoked the rule of completeness to clarify the following two issues: (1) to show Eloy

testified that he had performed multiple banding procedures on the 20 to 30 patients to counter

Fakes’ characterization that 20 to 30 patients was not “a whole lot of experience” (we note

Fakes did not object to this testimony) and (2) to confirm Eloy’s testimony that any answer to

the question regarding whether performing an endoscopic variceal banding procedure would

have saved decedent’s life was, at best, speculative to counter Fakes’ suggestion that Eloy had

no opinion on that issue.

¶ 90 Despite Fakes’ urging that we find an abuse of discretion, we are mindful of the courtroom

dynamics under which a trial judge makes the determination to admit evidence under the rule

of completeness. We find it comparable to a trial judge’s typically instantaneous ruling on an

objection that the opposing party’s cross-examination exceeded the scope of the direct

examination. In that moment, trial judge A might sustain the objection and bar the trier of

facts’ consideration of that evidence and–under the same scenario–trial judge B might decide

to overrule the objection and admit the evidence. On appeal, this court would not likely find an

abuse of discretion under either scenario unless, in our view, the court’s decision was

“arbitrary, fanciful[,] or unreasonable.” (Internal quotation marks omitted.) Pister v. Matrix

Service Industrial Contractors, Inc., 2013 IL App (4th) 120781, ¶ 55, 998 N.E.2d 123. In this

case, no such abuse of discretion occurred.

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¶ 91 Accordingly, we conclude that the trial court’s admission of the deposition evidence Eloy

provided pursuant to the completeness doctrine was relevant, particularly appropriate, and

sufficiently tailored to place the evidence Fakes solicited during her cross-examination in its

proper context. We further conclude that the aforementioned mortality rates and Child’s score

deposition testimony Eloy introduced under the rule of completeness was proper under that

doctrine.

¶ 92 3. Fakes’ Petrillo Claim

¶ 93 Fakes argues that the trial court abused its discretion by admitting the testimony of two

medical experts with whom defense counsel purportedly engaged in prohibited ex parte

communications in violation of the Petrillo doctrine. We disagree.

¶ 94 a. The Petrillo Doctrine

¶ 95 The underlying public policy principles governing a defense counsel’s ex parte

communications with a plaintiff’s treating physician were first articulated in Petrillo. In that

products-liability case, the defense attorney engaged in ex parte communications with the

plaintiff’s treating physicians, in violation of the court’s order prohibiting such conduct.

Petrillo, 148 Ill. App. 3d at 585, 499 N.E.2d at 955. On appeal, defense counsel argued that

public policy does not prohibit such ex parte contact. Id. at 587, 499 N.E.2d at 955. As a matter

of first impression, the appellate court rejected that argument, concluding that “ex parte

conferences between defense counsel and a plaintiff’s treating physician jeopardize the

sanctity of the physician-patient relationship and, therefore, are prohibited as against public

policy.” Id. at 588, 499 N.E.2d at 957.

¶ 96 b. Defense Counsel’s Correspondence to Duncan and Garrity

¶ 97 On February 2, 2012, defense counsel mailed separate letters to Duncan and Garrity,

enclosing a “Subpoena for Appearance at Trial.” Those two letters informed the respective

physicians that the trial in this case was scheduled to begin on March 5, 2012, and that their

testimony was anticipated sometime on March 8 or 9, 2012. The letter then informed the

physicians, as follows:

“First, please understand we will try to be flexible in accommodating your

appearance with a time least disruptive to your medical practice. That said, I am

required to put a specific date and time on the [s]ubpoena. Your office may contact [the

assistant] at our office upon receipt of this [s]ubpoena to discuss when your trial

appearance will actually be presented. Again, we will do everything we can to

accommodate your schedule”

In accordance with local court rules, a $25 check was included for “witness fee and mileage.”

¶ 98 On February 29, 2012, defense counsel sent a second letter to Garrity, requesting that

Garrity contact the assistant to schedule his testimony. The letter also informed Garrity that, if

requested, the firm would provide him a copy of his September 2009 deposition. On March 2,

2012, the assistant sent a third letter to Garrity, enclosing a copy of his deposition. Copies of

the four letters were mailed to Fakes at the same time they were mailed to Duncan and Garrity.

¶ 99 c. Fakes’ Pretrial Motion and the Trial Court’s Preliminary Ruling

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¶ 100 On March 5, 2012, Fakes filed a motion to bar the testimony of Duncan and Garrity as a

sanction for defense counsel’s improper ex parte communications with them. In support of her

motion, Fakes enclosed the aforementioned letters.

¶ 101 At a hearing conducted that same day, Fakes argued that Eloy’s counsel engaged in ex

parte communications with Duncan and Garrity, thereby violating the prohibition against such

communications and conferences between a defense counsel and a plaintiff’s treating

physician. Citing, in part, Nastasi v. United Mine Workers of America Union Hospital, 209 Ill.

App. 3d 830, 838, 567 N.E.2d 1358, 1364 (1991), Fakes asserted that such ex parte

communications violated public policy because they “jeopardize the sanctity of the

confidential and fiduciary relationship between a physician and his patient.”

¶ 102 Citing Mahan v. Louisville & Nashville R.R. Co., 203 Ill. App. 3d 748, 754, 561 N.E.2d

127, 131 (1990), Eloy argued that Fakes’ argument fails because the communications at issue

were de minimis in that they involved administrative scheduling and did not result in the

disclosure of any private or confidential information.

¶ 103 The trial court found Mahan persuasive and applicable and denied Fakes’ motion, noting

that the written and verbal contact between defense counsel’s office and the physicians were de

minimis and thus, did not violate Petrillo. Despite that finding, the court permitted Fakes to

conduct a brief voir dire of Duncan and Garrity to determine the extent of the contact.

¶ 104 d. The Voir Dire of Duncan and Garrity

¶ 105 Duncan testified that when he received defense counsel’s February 2, 2012, letter, he

forwarded it to the physician’s group he was associated with, and that organization provided

him with his September 2009 deposition as well as the scheduling information regarding his

appearance at trial. Duncan did not have any contact or otherwise discuss any aspect of

decedent’s case with defense counsel or his staff.

¶ 106 Garrity testified that when he arrived to provide his September 2009 deposition, he had “no

idea what the deposition was even about,” no recollection of decedent, and could not recall

whether he had examined decedent when she arrived at the ER. As Garrity and Eloy waited for

Fakes’ arrival, Eloy’s attorney provided Garrity a copy of decedent’s ER chart. Garrity could

not remember any conversation that he had with Eloy’s counsel at that time, stating, Eloy’s

counsel “gave me [a] copy of the emergency department chart that I hadn’t seen up until then[,]

and he gave me a chance to review it.” Other than providing Garrity the chart, Eloy’s counsel

did not discuss any aspect of Fakes’ pending suit with Garrity.

¶ 107 Upon receipt of the February 29, 2012, letter, Garrity called and spoke with the office

assistant to coordinate a time to provide his testimony that would not conflict with his work

schedule. Garrity did not discuss decedent’s case with defense counsel’s office.

¶ 108 After the hearing, the trial court reaffirmed its earlier denial of Fakes’ motion, finding that

the contact among defense counsel’s office, Garrity, and Duncan was de minimis.

¶ 109 e. The Mahan Case

¶ 110 In Mahan, 203 Ill. App. 3d at 754, 561 N.E.2d at 131, the court briefly discussed the

underlying policy considerations in Petrillo and then applied that holding to the facts

presented, as follows:

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“The holding of Petrillo was based on the strong public policy in favor of

preserving the confidential and fiduciary relationship between a physician and his

patient. In this case, the communication between defendant’s attorney and plaintiff’s

physician could in no way have jeopardized that policy. The ex parte communication

here was limited to a brief discussion, lasting no more than 30 seconds, prior to the

physician’s deposition during which time the defendant’s attorney merely asked the

physician if he had seen the plaintiff’s [computed tomography (CT)] scans. The doctor

indicated that he had not had time to review the scans prior to the deposition but that he

had reviewed his notes and determined that the scans were not relevant to what he had

treated the patient for. The attorney then apparently asked the physician whether he

would then have time to review the scans, and the doctor indicated that it would take

him about 5 or 10 minutes to do so and that because of the time factor he would go

along with what the hospital radiologist had found regarding the results of those scans.”

¶ 111 f. The Propriety of the Trial Court’s Petrillo Ruling

¶ 112 In this case, the parties concede that defense counsel, through his representatives,

communicated with Duncan by letter and Garrity through letters and a phone call. The

evidence presented revealed that the intent of that contact was to coordinate the March 2012

court appearances of Duncan and Garrity with their respective work schedules. The testimony

provided by Duncan and Garrity, which the trial court found credible, revealed the actual

extent of that contact, which was limited to scheduling.

¶ 113 The trial court found that the communications among defense counsel’s representatives,

Duncan, and Garrity was de minimis and, pursuant to the holding in Mahan, did not violate the

Petrillo doctrine. The issue before us concerns the propriety of that ruling–that is, did the court

abuse its discretion by making such a finding. We conclude that the court did not.

¶ 114 In Petrillo, 148 Ill. App. 3d at 610, 499 N.E.2d at 971, the appellate court provided the

following guidance when analyzing the question this court now considers:

“We believe that this issue, namely, whether defense counsel may properly engage

in ex parte conferences with a plaintiff’s treating physician, is best decided by relying

on principles of public policy, obligations created by confidential and fiduciary

relationships, and the ethical responsibilities of modern-day professionals.”

¶ 115 We agree with the trial court that the specific policy the Petrillo court sought to protect by

prohibiting a defense counsel’s communications with a plaintiff’s treating physician–namely,

the confidential and fiduciary relationship between a doctor and the patient–were not

implicated by contact that merely sought to facilitate the physician’s appearance at trial by

preemptively resolving any scheduling conflicts. In so concluding, we reject Fakes’ assertion

that “Petrillo bars all contact–under the guise of social nicety or not–and focuses on the

potential, rather than actual, harm that could result.” The Petrillo court was concerned with a

situation where “ ‘the physician divulges to a third party information which the patient

originally disclosed to the physician with the belief that the information would remain

confidential unless the patient gave his consent otherwise.’ ” (Emphasis in original.) Hall v.

Flowers, 343 Ill. App. 3d 462, 467, 798 N.E.2d 757, 760 (2003) (quoting Petrillo, 148 Ill. App.

3d at 591, 499 N.E.2d at 959). A bright-line prohibition against any contact–as Fakes

suggests–would diminish the important public policy issues the Petrillo court specifically

addressed.

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¶ 116 For the reasons stated, we conclude that the trial court did not abuse its discretion by

denying Fakes’ motion to bar the testimony of Duncan and Garrity for violating Petrillo.

¶ 117 In so concluding, we note that in (1) Fakes’ March 2012 motion to bar the testimony of

Duncan and Garrity, (2) the later hearing at which the trial court considered that motion, and

(3) her July 2012 posttrial motion, Fakes did not argue an issue she now raises on

appeal–namely, that the court should have also barred Garrity’s testimony on the ground that

he was not competent to testify as required by Illinois Rules of Evidence 602 (eff. Jan. 1,

2011). The rule states that “[a] witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the matter.” Ill. R.

Evid. 602 (eff. Jan. 1, 2011). But see In re Katarzyna G., 2013 IL App (2d) 120807, ¶ 10, 995

N.E.2d 585 (“Ordinarily, the failure to raise an issue in the trial court results in forfeiture of

that issue on appeal.”). Fakes contends in her reply brief that the court’s failure to bar Garrity’s

testimony constitutes plain error.

¶ 118 The application of the plain-error doctrine, provided for in Illinois Supreme Court Rule

615(a) (eff. Jan. 1, 1967), states, as follows:

“(a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity,

or variance which does not affect substantial rights shall be disregarded. Plain errors or

defects affecting substantial rights may be noticed although they were not brought to

the attention of the trial court.”

¶ 119 In Belfield v. Coop, 8 Ill. 2d 293, 313, 134 N.E.2d 249, 259 (1956), the supreme court held

that the plain-error doctrine applies to civil cases under the following circumstances:

“If prejudicial arguments are made without objection of counsel or interference of the

trial court to the extent that the parties litigant cannot receive a fair trial and the judicial

process stand without deterioration, then upon review this court may consider such

assignments of error, even though no objection was made and no ruling made or

preserved thereon.”

¶ 120 In accord with Belfield, this court has long held that because civil proceedings do not

implicate sixth amendment concerns (U.S. Const., amend. VI), application of the plain-error

doctrine to civil cases should be “ ‘exceedingly rare and limited to circumstances amounting to

an affront to the judicial process.’ ” Holder v. Caselton, 275 Ill. App. 3d 950, 959, 657 N.E.2d

680, 687 (1995) (quoting Allison v. Stalter, 251 Ill. App. 3d 127, 131, 621 N.E.2d 977, 979

(1993)). See In re J.R., 342 Ill. App. 3d 310, 317, 794 N.E.2d 414, 420-21 (2003) (quoting

Holder and Allison approvingly). Indeed, in Gillespie v. Chrysler Motors Corp., 135 Ill. 2d

363, 377, 553 N.E.2d 291, 298 (1990), the supreme court explained that the civil cases in

which the plain-error doctrine was applied “involved blatant mischaracterization of fact,

character assassination, or base appeals to emotion and prejudice.”

¶ 121 Because (1) Fakes has forfeited her contention and (2) we conclude that her evidentiary

claim falls far short of constituting an affront to the judicial process, we decline to consider it

under the plain-error doctrine.

¶ 122 4. Fakes’ Hearsay Claim

¶ 123 Fakes argues that the trial court abused its discretion by admitting hearsay evidence. We

disagree.

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¶ 124 “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c)

(eff. Jan. 1, 2011). Unless it falls within a recognized exception to the rule, hearsay is not

admissible. Mowen v. Holland, 336 Ill. App. 3d 368, 372, 783 N.E.2d 180, 183 (2003). “An

out-of-court statement offered to prove its effect on a listener’s mind or to show why he

subsequently acted as he did is not hearsay and is admissible.” In re Marriage of Roepenack,

2012 IL App (3d) 110198, ¶ 44, 966 N.E.2d 1024.

¶ 125 Fakes’ hearsay argument concerns the February 27, 2004, conversation Eloy had with

Harmon at approximately 5:08 a.m. Eloy testified at trial that during their conversation,

Harmon informed him, in pertinent part, that decedent’s medical condition was stable.

(Harmon did not testify.) The trial court then overruled Fakes’ hearsay objection based on

counsel’s response that Harmon’s statement regarding decedent’s medical condition was not

offered for its truth but, instead, to show the effect it had on Eloy. In particular, to explain why

Eloy showered, shaved, and got dressed before traveling to the hospital. Fakes contends that

Harmon’s statement that decedent was stable was offered for its truth and did not fall under an

established hearsay exception. In support of her claim, Fakes directs us to Eloy’s closing

argument, which we summarize, as follows.

¶ 126 During closing arguments, Eloy’s counsel told the jury that the “real issue” in this case

concerned what happened between 5:08 a.m. and 8:15 a.m., and whether Eloy’s actions during

that time were within the medical standard of care. His argument continued as follows:

“Eloy appropriately picked up the phone at 5:08 [a.m.], took a report from an

extremely well qualified ICU nurse, *** heard that [decedent’s] hemoglobin had fallen

over a period of time and [decedent] was stable. There was no report that [decedent]

was bleeding. There was no report of any active process going on at that time. She

wasn’t bleeding orally, she wasn’t bleeding rectally. She was stable. *** Eloy did what

he was required to do under the standard of care. There really isn’t a lot of dispute about

that. *** He ordered [decedent] transfused and stabilized in exactly the way he should

have[,] which is, you don’t just flood [blood] in because it makes the condition worse[.]

Instead what [Eloy] ordered is two units [of blood] over three hours. He then did what

he needed to do, whatever that was, he got up and got moving. There wasn’t anything

for him to do at the hospital. And something very interesting, at no time *** after 5:08

[a.m.] did anyone call *** Eloy and say, [decedent] is now bleeding. Why is that?

Because she wasn’t. Wasn’t until *** 7:25[ ] when [decedent] started to bleed. At 7:30

[a.m., the ICU] call[s] the code. [Eloy] doesn’t have any place in the code process.”

(Emphasis added.)

¶ 127 Fakes asserts that although Eloy informed the trial court that the evidence at issue was

offered for its effect, Eloy later argued that testimony substantively during his closing

argument. We note, however, that Fakes’ overarching claim requires this court to conflate the

two issues she identifies and conclude that because Eloy argued the evidence improperly at

closing arguments, the court abused its discretion by initially admitting that evidence. We

decline to do so.

¶ 128 The fatal flaw in Fakes’ assertion is that she fails to provide any support for the necessary

proposition that the trial court was under an obligation to sua sponte prevent Eloy from arguing

substantively the evidence the court initially admitted for a limited purpose. This obligation,

however, belongs to Fakes not the court. See Babikian v. Mruz, 2011 IL App (1st) 102579,

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¶ 13, 956 N.E.2d 959 (“[T]he failure to object to allegedly improper comments during closing

argument operates as a forfeiture of the objection.”).

¶ 129 To the extent Fakes argues that the trial court abused its discretion by admitting Harmon’s

characterization of decedent’s condition for the limited purpose of its effect on Eloy, we reject

that claim because the record shows the court was well within its discretion to do so. Having

previously concluded that reversal and remand of this case is warranted, we need not address

further Fakes’ forfeited argument.

¶ 130 In so concluding, we note that the issue of a party’s initially offering evidence for a limited

purpose and then arguing the same evidence substantively is entirely foreseeable. To prevent

such an occurrence, a better practice would be for the opposing party to request the trial court

provide the jury a limiting instruction immediately after the court admits the evidence for its

limited purpose. In the absence of such a motion, the court may sua sponte raise the question of

whether the opposing party wishes the jury to be so instructed. See Graham, supra § 105.1, at

67 (“The opposing party is entitled, on request, to an instruction to the jury limiting their use of

the evidence” but “the court may sua sponte give a limiting instruction or preferably inquire of

counsel’s desire as to one being given.”). This issue should then be revisited during the jury

instruction conference so that the parties and the court are reminded of the limited purpose for

which the evidence was admitted, thereby reminding the parties that such limited evidence

should not be argued to the jury as if it were admitted as substantive evidence. Fakes might also

have requested that the jury be instructed regarding the limited purpose of the evidence. See,

for example, Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (providing the

limiting instruction regarding how a jury may consider proof of other offenses or conduct for

various limiting purposes); People v. Butler, 377 Ill. App. 3d 1050, 1067, 882 N.E.2d 636, 649

(2007) (“ ‘Because other-conduct evidence poses a risk of significant prejudice to defendant,

this court has suggested trial courts not only instruct the jury in accordance with IPI Criminal

4th No. 3.14 at the close of the case, but also at the time the evidence is first presented to the

jury.’ ” (Emphasis in original.) (quoting People v. Brown, 319 Ill. App. 3d 89, 100, 745 N.E.2d

173, 183 (2001))); People v. Denny, 241 Ill. App. 3d 345, 360-61, 608 N.E.2d 1313, 1324

(1993) (holding that “trial courts should not only instruct the jury in accordance with IPI

Criminal 2d No. 3.14 at the close of the case, but also orally from the bench (unless defendant

objects) at the time the evidence is first presented to the jury”).

¶ 131 5. Fakes’ Motion in Limine Claim

¶ 132 Fakes argues that the trial court abused its discretion by admitting evidence the court had

barred. We agree.

¶ 133 a. Fakes’ Pretrial Motion in Limine

¶ 134 In February 2012, Fakes filed a motion in limine, requesting, in pertinent part, that the trial

court prohibit defendants from “communicating, implying, or otherwise inferring” the

“personal or family circumstances” of Eloy. Following a hearing on that motion conducted

later that month, the court granted Fakes’ motion in limine.

¶ 135 b. Eloy’s Trial Testimony

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¶ 136 In her case in chief, Fakes called Eloy as an adverse witness and after asking him his name,

address, and his occupation, questioned him further, as follows:

“[FAKES’ COUNSEL]: Did you attend the necessary education and training to

become a medical doctor?

[ELOY]: I did ***.

[FAKES’ COUNSEL]: Where did you do your undergraduate training?

[ELOY]: In Mexico.

[FAKES’ COUNSEL]: What was the name of the university?

[ELOY]: Universidad de Guadalajara.

[FAKES’ COUNSEL]: Where did you get your medical degree?

[ELOY]: Universidad de Guadalajara.

[FAKES’ COUNSEL]: What year did you complete your medical training in

Mexico?

[ELOY]: 1976.

[FAKES’ COUNSEL]: After you completed your education and schooling in

Mexico, did you come to the United States?

[ELOY]: I came to the United States in 1979, I believe.

[FAKES’ COUNSEL]: And from that point forward, have you lived in the United

States?

[ELOY]: I have.”

¶ 137 In his case in chief, Eloy began his testimony by explaining his medical credentials. In

presenting his early educational background, the following exchange occurred:

“[ELOY’S COUNSEL]: Let’s talk about that training. Where did you attend

college?

[ELOY]: [I] went to *** college in Mexico.

[ELOY’S COUNSEL]: Where did you grow up[?]

[ELOY]: In Mexico.

[ELOY’S COUNSEL]: *** How did you get to Mexico, how long did you stay,

why did you go to school in Mexico[?]

[ELOY]: I had nothing to do with it. I was five years old, born in California. My

father had a heart attack. He decided that he didn’t want to live–he found this ideal

place with beautiful weather–

[FAKES’ COUNSEL]: *** Judge, I have an objection based on the pretrial order

about the irrelevance of personal family matters.

THE COURT: Overruled. You may proceed.

[ELOY’S COUNSEL]: Thank you. ***

[ELOY]: –so my parents decided that they wanted to move to Mexico. And I was

five years old, I couldn’t say no or yes.

[ELOY’S COUNSEL]: How long did you live in Mexico?

[ELOY]: Until I was age 29 or 30.”

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Thereafter, Eloy recounted his training in the United States, which included a 2½-year medical

research project at the University of Texas in Houston; a 3-year internal medicine residency

program at Saint Francis Hospital in Evanston, Illinois, where he eventually became a chief

medical resident; and a 2-year fellowship at Saint Francis Hospital where he studied

gastroenterology. In 1983, Eloy began practicing at Decatur Memorial Hospital and became

board certified in internal medicine and gastroenterology.

¶ 138 c. Fakes’ Claim of Error

¶ 139 We first note the rule that “[i]rrelevant evidence is not admissible.” Maffett v. Bliss, 329 Ill.

App. 3d 562, 574, 771 N.E.2d 445, 455 (2002). “[E]vidence is relevant if it has any tendency to

make the existence of a fact that is of consequence to the determination of the action either

more or less probable than it would be without the evidence.” Downey v. Dunnington, 384 Ill.

App. 3d 350, 387, 895 N.E.2d 271, 301 (2008).

¶ 140 In this case, the overarching controversy before the jury concerned whether Eloy complied

with the medical standard of care when he treated decedent for her bleeding esophageal

varices. Thus, evidence regarding Eloy’s credentials–that is, that Eloy was an Illinois-licensed

physician who had certain experience and expertise in the specialized medical field of

gastroenterology–was relevant and admissible. In contrast, the underlying family

circumstances that caused him to attend medical school in Mexico were irrelevant because

such evidence would not have assisted the jury in resolving a question of fact. Fakes contends

that Eloy’s “intentional violation artificially bolstered [his] credibility by offering a

sympathetic rationale for why he attended medical school in Mexico and not the United

States.”

¶ 141 In response, Eloy argues that the evidence concerning his medical school education in

Mexico was relevant to “rehabilitate *** and help establish for the jury that he did not

experience an inferior education by attending medical school in Mexico.” We are unpersuaded

that any such rehabilitation was required because on the record before us, the implication that

Eloy attended an inferior medical school was nonexistent. Even if such an implication had

been made, the fact that Eloy came to live in Mexico under unfortunate circumstances could

have no possible bearing on the quality of medical education he received at the Universidad de

Guadalajara. In this regard, we reaffirm what this court wrote in Downey, 384 Ill. App. 3d at

387, 895 N.E.2d at 301, that the use of irrelevant and inadmissible evidence “constitutes an

aberrant practice that should not be tolerated.”

¶ 142 What we find particularly egregious and bothersome is that Fakes properly sought to

exclude this irrelevant and inadmissible evidence by filing a motion in limine, presenting her

argument in a pretrial hearing, and receiving a favorable ruling from the trial court. If, as Eloy

contends, Fakes did attempt to solicit evidence that communicated, implied, or otherwise

suggested a negative connotation regarding Eloy’s medical training, Eloy’s recourse was to

present his claim to the court, outside the jury’s presence, and obtain a ruling instead of simply

choosing during trial to ask irrelevant questions about his personal or family circumstances.

¶ 143 Accordingly, we agree with Fakes that the trial court abused its discretion by admitting

evidence pertaining to Eloy’s family circumstances.

¶ 144 C. Fakes’ Motion To Strike Certain Prospective Jurors for Cause

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¶ 145 Fakes argues that the trial court erred by failing to strike four prospective jurors for cause.

Specifically, Fakes contends that the court’s denial of her motion to dismiss for cause

veniremembers A through D required her to exhaust her peremptory challenges, which forced

her to accept juror G.M. We disagree.

¶ 146 “The determination of whether a prospective juror is capable of giving the parties a fair and

impartial trial rests in the sound discretion of the trial judge, whose determination should not

be set aside unless it is against the manifest weight of the evidence.” Magna Trust Co. v.

Illinois Central R.R. Co., 313 Ill. App. 3d 375, 390, 728 N.E.2d 797, 810 (2000).

¶ 147 In In re Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 42, 970 N.E.2d 560, the

respondent argued that he was prejudiced by the trial court’s denial of his motion to strike two

prospective jurors for cause. As a result, the respondent claimed that he was forced to use two

peremptory challenges and had none remaining to strike a third objectionable juror. Id. The

appellate court applied the following test to address respondent’s claim: “[I]n Illinois[,] *** a

court’s failure to remove a juror for cause is grounds for reversal only if prejudice can be

shown; that is, only if the party challenging the juror has exercised all of [the] peremptory

challenges and an objectionable juror was allowed to sit on the jury.” (Emphasis added.) Id.

¶ 45, 970 N.E.2d 560. The court then rejected the respondent’s argument, concluding that he

failed to show how he was prejudiced by the juror at issue. Id. ¶ 46, 970 N.E.2d 560.

¶ 148 In support of her claim, Fakes highlights specific answers prospective jurors A through D

provided during voir dire to purportedly show their respective biases. We need not, however,

reach the merits of these specific claims because even if we were to agree with Fakes that the

court erred by denying her motions to strike any or all four prospective jurors, Fakes does not

address how she was prejudiced by the empanelling of juror G.M., the juror whom Fakes

claims she was forced to accept because she had used all of her peremptory challenges. Instead,

Fakes asserts that the burden of showing how she was prejudiced by G.M.’s presence on the

jury “ignores the crucial difference between requiring a party to use one or two peremptory

strikes on objectionable jurors and requiring a party to use a full 80% of her strikes on jurors

that should have been stricken for cause.” Citing General Motors Corp. v. Jernigan, 883 So. 2d

646, 672 (Ala. 2003), Fakes urges this court to distinguish Trulock by “recognizing that

whereas requiring a party to wrongfully use one or two peremptory strikes might constitute

harmless error *** requiring a party to wrongfully use 80% of her peremptory strikes on biased

jurors *** substantially impairs her right to those strikes afforded.”

¶ 149 We decline Fakes’ invitation to establish some sort of mathematical standard to measure

the effect that the allegedly erroneous denial of a motion to strike for cause has on a party’s

overall number of peremptory challenges. Simply put, that is not the law in Illinois, nor has it

been for at least 126 years. In Spies v. People, 122 Ill. 1, 257-58, 12 N.E. 865, 989 (1887), the

Illinois Supreme Court was presented with the same argument Fakes makes here, and the

supreme court wrote the following:

“Counsel for the [defendants] complain, that the trial court overruled their

challenges for cause of [26] talesmen ***. As they afterwards peremptorily challenged

the talesmen so referred to, no one of them sat upon the jury. ***

*** [The defendants’] peremptory challenges *** were all used by them before the

twelfth juror was taken.

After the defendants had examined the twelfth juror, *** they challenged him for

cause. Their challenge was overruled and they excepted.

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*** It is claimed that, inasmuch as the defendants exhausted all their peremptory

challenges before the panel was finally completed, the action of the court in regard to

these particular jurors will be considered, and, if erroneous, such action is good ground

of reversal. We think it must be made to appear that an objectionable juror was put

upon the defendants after they had exhausted their peremptory challenges. Unless

objection is shown to one or more of the jury, who tried the case, the antecedent rulings

of the court upon the competency or incompetency of jurors, who have been challenged

and stood aside, will not be inquired into in this court. [Citation.]

We can not reverse this judgment for errors committed in the lower court in

overruling challenges for cause to jurors, even though defendants exhausted their

peremptory challenges unless it is further shown that an objectionable juror was forced

upon them and sat upon the case after they had exhausted their peremptory challenges.

This doctrine is ably discussed in Loggins v. State, 12 Tex. Ct. App. 65. We think the

reasoning in that case is sound and answers the objection here made.” (Emphasis in

original and internal quotation marks omitted.)

¶ 150 We are not surprised that Fakes does not assert that she was prejudiced by juror G.M.

because the record is devoid of any basis for such a claim. In other words, no evidence existed

to show that G.M. was biased or would fail to heed the court’s instructions regarding her role

as a juror. Accordingly, we reject Fakes’ contention and adhere to the established principle

stated in Spies and reiterated in Trulock.

¶ 151 III. CONCLUSION

¶ 152 For the foregoing reasons, we reverse and remand with directions to conduct a new trial.

¶ 153 Reversed and remanded with directions.

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