Snelson v. Kamm

JUSTICE COOK, dissenting:

I respectfully dissent and would reinstate the jury’s verdict.

The majority opinion establishes a new two-prongéd rule for our district. When a trial court orders a new trial on the basis of inadequate damages, we will give deference to the decision of the jury and reverse. Craigmiles, 248 Ill. App. 3d at 927, 618 N.E.2d at 1253 (“jury could have concluded” plaintiff suffered no additional pain and suffering). However, when a trial court orders a new trial on the basis of excessive damages, we will give deference to the decision of the trial court and affirm. 319 Ill. App. 3d at 133 (“the trial court did not clearly abuse its discretion by granting a new trial on the issue of damages”).

“A court’s ruling on a motion for a new trial will not be reversed except in those instances where it is affirmatively shown that it clearly abused its discretion.” Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513 (new trial requested on the basis that no damages were proximately caused by accident). In Maple, however, the trial court denied the motion for a new trial. Particular deference should be given the trial court’s ruling on a motion for new trial when that ruling supports, rather than overturns, the jury’s verdict. Blakey v. Gilbane Building Corp., 303 Ill. App. 3d 872, 884 , 708 N.E.2d 1187, 1195 (1999).

In fact eveiy case cited by the majority reached a conclusion contrary to that reached by the majority here. All those cases, in one way or another, upheld the verdict of the jury. See Suttle, 315 Ill. App. 3d at 110, 733 N.E.2d at 737 (trial court’s grant of a new trial, because of plaintiff’s prejudicial argument, reversed); see also Tierney, 268 Ill. App. 3d at 1063-65, 645 N.E.2d at 293-94 (denial of motion for new trial affirmed, $18.5 million verdict does not shock conscience).

Maple goes on to make it clear that the trial court does not have unfettered discretion to set aside a jury verdict.

“Unquestionably, it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses’ testimony. [Citation.] A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. ***

*** If the trial judge, in the exercise of his discretion, finds that the verdict is against the manifest weight of the evidence, he should grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.” Maple, 151 Ill. 2d at 452-56, 603 N.E.2d at 511-13.

As with issues of credibility, an award of damages is left to the sound intelligent judgment, or good sense, of the jury. A jury award should be reversed on appeal only if it is evident that the amount resulted from passion or prejudice, and that the amount falls outside the limits of fair and reasonable compensation and shocks the judicial conscience. If a jury’s award falls within the flexible range of conclusions reasonably supported by the evidence, it must stand. Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1138 , 738 N.E.2d 542, 556 (2000); Kopczick v. Hobart Corp., 308 Ill. App. 3d 967, 979 , 721 N.E.2d 769, 779 (1999); Hastings v. Gulledge, 272 Ill. App. 3d 861, 863-64 , 651 N.E.2d 778, 781 (1995) (adequacy of the verdict is peculiarly within the province of the jury, and great weight is given to the jury’s decision).

The majority cites Haid for the proposition that when a trial judge concludes that a verdict is excessive the trial judge must act to correct the injustice, and the failure to do so is error. Haid, 219 Ill. App. 3d at 410, 579 N.E.2d at 916 (also holding that remittitur should be considered to correct an excessive verdict). Haid, however, was a breach of contract case where only one verdict amount was possible.

Does the trial court have the authority to set aside a jury verdict as excessive even when the reviewing court could not do so?

“Furthermore, it is important to keep in mind that ‘ “[t]he presiding judge in passing upon the motion for new trial has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility.” ’ ” Maple, 151 Ill. 2d at 456, 603 N.E.2d at 513, quoting Buer, 48 Ill. App. 2d at 173-74, 199 N.E.2d at 257-58, quoting Hulke, 14 Ill. App. 2d at 47, 142 N.E.2d at 739.

Maple, again, was a proximate cause case, not an excessive damages case. Nor is Buer or Hulke authority for the proposition that the trial court has broad authority to grant a new trial when it is argued that damages are excessive. In Buer, the appellate court reversed the grant of a new trial, where plaintiff had complained that the damages were inadequate, noting that it is the jury, not the court, which is the fact-finding body; that the finding of the jury is binding upon the court unless it is unreasonable, arbitrary, and unsupported by the evidence; and the same rule that says that a reviewing court will not reverse the trial court except in clear cases of abuse of discretion also applies to the trial judge in passing on a motion for new trial. Buer, 48 Ill. App. 2d at 175-76, 199 N.E.2d at 258-59. In Hulke, the trial court had denied the motion for a new trial. The appellate court affirmed, noting that the amount of damages is primarily a question of fact for the jury, and the question of excessiveness is not to be determined by what we as judges think the damages should have been. Hulke, 14 Ill. App. 2d at 49, 142 N.E.2d at 740.

There are many reasons why a court may grant a new trial, and the trial court has greater discretion in some areas than in others. J. Solovy, R Byman, H. Suskin, B. Levenstam & V Lazar, 4A Illinois Practice § 5:11, Comments 10 through 18 (West 2000) (Illinois Civil Litigation Guide). The trial court’s discretion is at its lowest level when it considers whether damages are excessive, an area peculiarly within the province of the jury.

It is also misleading to say that the trial court has discretion to grant or deny a new trial when the reason for the new trial is judicial error. The trial court cannot prevent the reviewing court from finding error. E James & G. Hazard, Civil Procedure § 7.17, at 304 (2d ed. 1977). The trial judge, however, does have more room for discretion in granting new trials for impropriety or prejudicial occurrences in the presence of the jury, having peculiar opportunities to observe the characteristics and reactions of the jury. F. James & G. Hazard, Civil Procedure § 7.18, at 307 (2d ed. 1977); see also Hulke, 14 Ill. App. 2d at 46, 142 N.E.2d at 739 (in a better position to weigh the effect upon the jury). Where the verdict is said to be excessive or inadequate, the judge has some authority to grant a new trial where the damages are liquidated or can be ascertained by the application of fixed rules of law. Where there are no applicable rules which supply a mathematical formula, or something like it, however, the jury’s wide discretion must be recognized. F. James & G. Hazard, Civil Procedure § 7.21, at 321-22, 325 (2d ed. 1977).

A trial court abuses its discretion in granting a new trial only because it would have decided the case differently had it been the trier of fact. Netzel v. United Parcel Service, 181 Ill. App. 3d at 816-18, 537 N.E.2d at 1353-54 (new trial on liability reversed; new trial on damages affirmed where counsel requested damages for “loss of job”). An abuse of discretion will be found if there is no basis in the record to support the grant of a new trial. Lagoni v. Holiday Inn Midway, 262 Ill. App. 3d 1020, 1028-29 , 635 N.E.2d 622, 628 (1994); Craigmiles, 248 Ill. App. 3d at 927, 618 N.E.2d at 1253. Where there is sufficient evidence to support the jury’s award of damages, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial. Maple, 151 Ill. 2d at 456, 603 N.E.2d at 513. The majority ignores these principles, allowing the trial court to substitute its view of what would be a fair and reasonable verdict for that of the jury, and refusing to interfere with the discretion of the trial court, without considering whether there is any basis in the record to support a new trial.

It is understandable why the majority chooses not to address the factors set forth by the trial court in reaching its decision. Those factors were: (1) the jury only took an additional 5 or 10 minutes when it was pointed out that it had failed to itemize the damages; (2) plaintiff was fortunate to have survived, as these cases have an 80% to 95% rate of fatality; (3) plaintiff offered to settle the case at the start of trial for $500,000 (plaintiff actually offered to settle for the limits of Dr. Kamm’s policy, $1 million, apparently to lay a foundation for a wrongful-refusal-to-settle claim); (4) plaintiffs closing argument to the jury for $10 million was not made in good faith; and (5) the jury’s question (“was it possible a brachial arteriogram could have been performed”) indicates it was attempting to base its decision on something other than the evidence presented. The majority adds another factor not mentioned by the trial court, that the jury awarded plaintiff $1.1 million for future medical expenses in the absence of evidence regarding such expenses. 319 Ill. App. 3d at 133. It appears, however, that plaintiff currently has medical expenses of $7,000 to $10,000 per month connected with hyperalimentation (total parenteral nutrition), the process whereby he is given basic nutrition through an intravenous bag inserted into one of his large veins, with a catheter into his heart. These expenses will last for the rest of plaintiffs life.

As the majority concedes, “Snelson undeniably suffered a serious injury as a result of the failed arteriogram.” 319 Ill. App. 3d at 133. What would be an appropriate verdict for a loss of the small intestine, and the loss of the ability to take nutrients by mouth for the rest of one’s life? Six million dollars? Three million dollars? The trial court might have awarded something less than that awarded by the jury, but this is not a case where the jury verdict falls outside the limits of fair and reasonable compensation or shocks the judicial conscience. See Richardson v. Chapman, 175 Ill. 2d 98, 112-14 , 676 N.E.2d 621, 628 (1997) (award in excess of $10 million does not “shock the conscience” where plaintiff suffered devastating, disabling injuries as a consequence of the accident). The majority concedes the jury’s verdict was in the ballpark. “This issue is a close one, and this court may have come to a different conclusion [from the trial court] on the same facts.” 319 111. App. 3d at 133. The majority is able to affirm only by adopting the position that the discretion of the trial court is unreviewable.