Auten v. Franklin

PRESIDING JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. I disagree that reversible error occurred in closing arguments. Further, I believe Drs. Cooley’s and Haag’s testimony should have been allowed in full but do not believe the court’s ruling constituted reversible error. More important, the trial court did not abuse its discretion by giving IPI Civil (Supp. 2008) No. B45.03.A, the jury was not misled by this instruction, and the medical defendants were not prejudiced by this instruction. I would affirm.

The given instruction accurately stated the law. Buka, 386 Ill. App. 3d at 179, 897 N.E.2d at 896 (a trial court must use the IPI instruction unless it does not accurately state the law). The instructions clearly directed the jury to determine the total amount of damages suffered by plaintiff and to apportion each defendant’s degree of fault:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her ***.”

“[Y]ou must apportion damages by determining the relative degree of fault, if any, of each person *** named or described on the verdict form.”

The instructions clearly established that the rights of defendants, Franklin and Nord, are separate and distinct from one another:

“The rights of the defendants, Christine Franklin[ ] and Larry Nord, M.D., are separate and distinct from one another. Each defendant is entitled to a fair consideration of his or her own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.”

Though proposed instruction No. 29A introduced by defendant Nord more fully states the law, that is not the test here.

Even if we accept the majority’s proposition that the IPI instruction was faulty and did not accurately state the law, that instruction is still appropriate as it did not mislead the jury or result in prejudice to the medical defendants, a prerequisite for reversal. See People v. Rodriguez, 387 Ill. App. 3d 812, 821 , 901 N.E.2d 927, 936 (2008) (the reviewing court will not reverse, even if the instruction was faulty, unless the instruction “clearly misled the jury and resulted in prejudice to the appellant”). Indeed, verdict form A clearly provided the jury opportunity to find each defendant responsible for none, part, or all of plaintiffs injuries:

“We, the jury, find for Dawn Auten and against the following defendants: Christine Franklin[:] Yes_No_[;] Larry Nord, M.D. and Central IL Orthopaedic Surgery[:] Yes_No_[.] *** Assuming that 100% represents the total combined fault of all persons or entities whose fault proximately caused Dawn Auten f/k/a Dawn Barnett’s injury, including any defendant whom you have found liable, we find the percentage of fault attributable to each as follows: (a) Christine Franklin_% (b) Larry Nord, M.D./ Central IL Orthopaedic Surgery_%[.]”

Verdict form B allowed a determination on the counterclaim filed by defendant Nord against defendant Franklin:

“We, the jury, find for defendant, Larry Nord, M.D.[,] and Central Illinois Orthopedic Surgery, S.C.[,] and against the plaintiff and [c]ounter[-p]laintiff, Christine Franklin.”

Though no separate verdict form was provided with regard to the counterclaim filed by Franklin against Nord, the jury instructions nevertheless provided more than adequate direction to make the jury aware of Franklin’s counterclaim, and the simplified verdict form that was given allowed sufficient opportunity for the jury to make a determination as to all claims and counterclaims. Additionally, the IPI comments reaffirm that IPI Civil (2006) B45.03.A should be given in this case:

“This verdict form is identical to IPI. B45.03.A with the exception of the addition of paragraph ‘Second’ providing for findings for or against third-party defendants. For cases involving contribution counterclaims among defendants, tried concurrently with the plaintiff’s claim, use B45.03A. For contribution claims which involve third-party complaints use this instruction.” (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 600.14, Notes on Use, at 627-28 (2006).

I recognize plaintiff’s counsel argued, during closing argument, that plaintiff did not have the burden of demonstrating which of her injuries were due exclusively to the motor-vehicle accident and which were due to the medical defendants. However, defense counsel objected to this line of argument, and the objection was sustained. Nevertheless, plaintiff ultimately argued correctly and the jury was properly instructed to make a determination about the doctor’s failure to diagnose the finger, not the forearm:

“The plaintiff claims that she was injured and sustained damage, and that the defendant, Christine Franklin, was negligent in one or more of the following respects:

(a) *** [Flailing to yield ***;

(b) Failing to keep a proper lookout for other traffic;

(c) Failing to keep the vehicle she was operating under proper control.

The plaintiff further claims that one or more of the foregoing was a proximate cause of [her] injuries.

The defendant, Christine Franklin, denies that she was negligent.

The plaintiff also claims that she suffered injury to her right index finger and sustained damage, and that defendant, Larry Nord, was professionally negligent in one or more of the following respects:

(a) Failing to perform an adequate and thorough examination of plaintiff;

(b) Failing to order the appropriate [X]-rays;

(c) Failing to diagnose the dislocation of plaintiffs index finger; and

(d) Failing to properly treat plaintiffs dislocated index finger.

The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries.

Defendant, Larry Nord, denies that he did any of the things claimed by the plaintiff, denies that he was negligent, and denies that any claimed action or omission on his part was a proximate cause of plaintiffs injuries.

Defendant, Christine Franklin, counterclaims that she is entitled to contribution from co[d]efendant, Larry Nord, for one or more of the following acts:

(a) Failing to perform an adequate and thorough examination of plaintiff;

(b) Failing to order the appropriate [X]-rays;

(c) Failing to diagnose the dislocation of plaintiffs index finger; and

(d) Failing to properly treat plaintiffs dislocated index finger.

Defendant, Larry Nord, denies that he did any of the things claimed by Christine Franklin, denies that he was negligent, denies that he contributed to plaintiffs injuries, and denies that any claimed act or omission on his part was a proximate cause of the plaintiffs claimed injuries.

Defendant, Larry Nord, counterclaims that he is entitled to contribution from defendant, Christine Franklin, for one or more of the following negligent acts and/or omissions:

(a) Failing to operate the automobile in a safe and cautious manner;

(b) Failing to keep a safe and careful lookout for other traffic;

(c) Failing to stop the automobile or to apply the brakes on the automobile in time to avoid colliding with another automobile;

(d) *** [Flailing to yield ***.

Christine Franklin denies that she was negligent.”

In these instructions, the trial court specifically instructed the jury that plaintiff claimed she suffered injury to her right index finger due to the medical defendants’ negligence, and the reviewing court must assume the jury followed the jury instructions. See, e.g., People v. Platter, 89 Ill. App. 3d 803, 820 , 412 N.E.2d 181, 194 (1980) (“The jury was properly instructed on the crime of involuntary manslaughter, and we will assume that the jury followed the instructions that were given”).

The jury was also correctly instructed that defendant Franklin was responsible for damages resulting from Nord’s actions.

“If a defendant negligently causes injury to the plaintiff, then the defendant is liable not only for the plaintiffs damages resulting from that injury, but is also liable for any damages sustained by the plaintiff arising from the efforts of health[-]care providers to treat the injury caused by the defendant[,] even if that health[-]care provider was negligent.”

See Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006).

Further, when apportioning the degree of fault, the jury clearly considered that the medical defendants were only responsible for the injury to plaintiffs right index finger caused by their negligence. In fact, the evidence supports the jury’s verdict that the medical defendants were responsible for 25% of plaintiffs damages. According to plaintiffs exhibit F, the medical bills related to treatment for (1) the arm injury alone totaled $24,252.42, (2) the finger injury alone totaled $47,035.14, and (3) the arm and finger injury together totaled $36,500, for a grand total of $107,788.54 in medical bills. (The jury awarded $107,000 for the reasonable expense of necessary medical care.) Moreover, the evidence indicated that the residual damage to the right index finger was greater than the injury to her arm. Additionally, plaintiff had significant pain and dysfunction associated with the injury to her right index finger, while she had little discomfort or dysfunction with her arm.

Without even taking into account the medical bills for the arm and finger injuries, the medical expenses plaintiff incurred solely for the injury to the right index finger ($47,035.12) are approximately twice as high as the medical expenses for the arm injury alone ($24,252.42). (Combined medical expenses for the arm and finger injuries totaled $36,500.98.) Yet, the jury assessed against the medical defendants 25% of plaintiffs total damages (25% of $307,000), which totals $76,750. That amount comports with the evidence of injury to the index finger for which the medical defendants were responsible.

The jury’s verdict clearly does not suggest the jury was misled by the evidence, closing argument, or IPI Civil (Supp. 2008) No. B45.03.A. Indeed, Illinois Supreme Court Rule 239(a) states the IPI Civil are sufficient and not misleading: “Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law *** the IPI instruction shall be used ***.” 177 Ill. 2d R. 239(a). As “[a] reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless [the instructions] clearly misled the jury and resulted in prejudice to the appellant,” the trial court’s ruling should be affirmed. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 , 775 N.E.2d 964, 973 (2002).

The majority raises the unspoken spectre in this case — the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 through 100/5 (West 2008)) — and the fact defendant Nord may be responsible for more than his assessed percentage of fault due to defendant Franklin’s unknown settlement for policy limits referenced on oral argument. However, that matter is not before this court and does not justify reversing an appropriate jury award. The jury made the appropriate calculations and allocations on this record. This was not “rocket science” — the jury considered the evidence and correctly apportioned liability between the parties. We should not now second-guess the jury’s abilities with hypotheticals and evidence not in the record.

The majority argues defendant Nord ought not have liability for the forearm. We do not know that he does. That is a matter between the joint tortfeasors and is the reason for the Contribution Act. 740 ILCS 100/2(a), (b) (West 2008). Defendant Nord has a right to an offset for the amount of defendant Franklin’s settlement. Franklin must obtain from the trial court approval of the settlement as being in good faith before she can be released and dismissed. That is defendant Nord’s protection here, as set forth by the legislature in the statute. This is not a wrong that needs to be addressed by this court based on the record and these instructions.

It is also of no matter that the settlement was reached after the jury verdict. See Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 286 , 641 N.E.2d 402, 411 (1994) (holding that, because “jury verdicts may be modified, reduced, or vacated on post[ ]trial motion or on appeal,” the court “do[es] not believe *** the parties should be obligated to accept the verdict amount as the final determination of the defendants’ common liability to the plaintiff to be reflected in a post-judgment settlement agreement”). Nor does plaintiff’s settlement with defendant Franklin hinder plaintiff’s right to enforce the judgment against defendant Nord. See Henry v. St. John’s Hospital, 138 Ill. 2d 533, 541 , 563 N.E.2d 410, 414 (1990) (holding “that an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor”).

Concededly, the proposed instruction is a good one, and it would not have been error for the trial court to have given that instruction. However, the instruction given was also proper, and the court did not abuse its discretion by giving the IPI instruction. For these reasons, I would affirm.