Thornton v. Garcini ( 2010 )

Docket No. 107028.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
TONI THORNTON, Indiv. and as Special Adm’r of the Estate of
Jason Anthony Ebner, Deceased, Appellee, v. FRANCISCO J.
GARCINI, M.D., Appellant.
Opinion filed October 29, 2009.–Modified upon denial of
rehearing April 22, 2010.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
The primary issue we address in this appeal is whether expert
testimony is required to prove negligent infliction of emotional
distress. Defendant, Dr. Francisco Garcini, appeals from the second
trial of a medical negligence claim. In that action, plaintiff, Toni
Thornton, individually and as special administrator of the estate of her
deceased infant son, sought damages for her son’s death and
compensation for negligent infliction of emotional distress. At the first
trial, the jury found in favor of defendant. Plaintiff appealed, and the
appellate court granted plaintiff a new trial. Thornton v. Garcini, 364
Ill. App. 3d 612 (2006).
On retrial, the jury found in favor of defendant on plaintiff’s
wrongful-death and survival claims, but in favor of plaintiff on her
negligent infliction of emotional distress claim. The appellate court
affirmed. 382 Ill. App. 3d. 813.
We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.
315. We now affirm the judgment of the appellate court.
I. BACKGROUND
On August 28, 2000, plaintiff’s son, Jason Anthony, was born
prematurely in a breech position, at an approximate gestational age of
24 weeks. During childbirth, Jason’s head became stuck in his
mother’s vagina, with the rest of his body outside the vagina. The
infant died when the nurses at the hospital were unable to complete
the delivery. Defendant arrived at the hospital an hour and 10 minutes
later.
Plaintiff, as administrator of Jason’s estate, brought an action for
medical negligence against defendant, Silver Cross Hospital, and
individual nurses. Plaintiff’s suit contained wrongful-death and
survival claims. Her suit also included an individual claim for
intentional infliction of emotional distress, claiming she suffered
emotional distress from the delivery.
At the first trial, the jury found in favor of defendant and the
nurses on the wrongful-death and survival claims and the intentional
infliction of emotional distress claim. On the intentional infliction of
emotional distress claim against the hospital, the jury found for
plaintiff and awarded her $175,000. Plaintiff filed posttrial motions
against all the defendants. During the pendency of these motions, the
hospital and nurses entered into a release of claims and satisfaction of
judgment upon payment of $175,000. The trial court later denied the
posttrial motion against defendant.
Plaintiff appealed only the judgment in favor of defendant. The
appellate court reversed and granted plaintiff a new trial. Thornton,
364 Ill. App. 3d 612.
At the second trial, defendant testified he was plaintiff’s
obstetrician. At 6:35 a.m. on the day of delivery, defendant was called
at his home and advised that plaintiff was having contractions. He
gave certain orders. The infant partially delivered in a breech position
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35 minutes later, at 7:10 a.m. Nurses were present for the delivery,
but no physician was present. The infant became entrapped at the neck
during the delivery. Defendant instructed the nurses not to deliver the
infant unless it could be done easily, because of a risk of decapitation.
The nurses were unable to deliver the infant, and he died before
defendant left his home. Plaintiff waited over an hour, with the
deceased infant partially delivered, until defendant arrived to complete
the delivery.
Plaintiff testified about her emotional state from laying in a
hospital bed for over an hour with the infant partially delivered.
Plaintiff stated she was depressed, and could not eat, or sleep. She
could only think about laying there for an hour and 10 minutes, and
there was nothing she could do but “sit there like that with my baby.”
She further testified that she has these thoughts “[a]ll the time” and
she has had thoughts of suicide because “[i]t was so horrible” and
“I’m always reminded of that hour and ten minutes that I sat there
with him.”
The infant’s father and plaintiff’s mother testified to the effect the
infant’s death and the circumstances of the delivery had on plaintiff.
No expert witness testimony was presented on plaintiff’s claim for
emotional distress.
Plaintiff amended her complaint to conform to the proofs and
submitted a negligent infliction of emotional distress claim to the jury.
She only submitted her negligent infliction of emotional distress claim
to the jury. Plaintiff did not submit her intentional infliction of
emotional distress claim to the jury.
The jury found in favor of defendant on the wrongful-death and
survival claims and for plaintiff on the negligent infliction of emotional
distress claim. The jury award plaintiff $700,000 in damages.
Defendant filed a posttrial motion seeking a judgment
notwithstanding the verdict, arguing that plaintiff failed to prove
negligent infliction of emotional distress with expert testimony.
Defendant’s motion also sought a judgment notwithstanding the
verdict based on the single recovery rule, and a setoff of the settlement
paid by the hospital. The trial court denied defendant’s posttrial
motion. The appellate court affirmed. 382 Ill. App. 3d 813.
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II. ANALYSIS
A. Judgment Notwithstanding the Verdict
Defendant contends he is entitled to a judgment notwithstanding
the verdict based on plaintiff’s failure to produce expert testimony on
the cause of her emotional distress. Specifically, defendant argues that
plaintiff failed to adduce expert testimony to establish that her
emotional distress was caused by the delay in delivering the deceased
infant.
Plaintiff argues that defendant forfeited or waived his right to
object to the verdict for negligent infliction of emotional distress by
failing to object to the jury instructions and to the competence of the
lay witnesses who testified about emotional distress.
We disagree with plaintiff that defendant has forfeited this issue.
A defendant must object to an error at trial and include it in a written
posttrial motion to preserve an issue on appeal. People v. Enoch, 122
Ill. 2d 176, 186 (1988). The record indicates defendant repeatedly
maintained in the trial court that plaintiff failed to present competent
proof of causation for her emotional distress claim, absent expert
testimony. Defendant moved for a directed verdict both at the close
of plaintiff’s case and at the close of all the evidence. In his trial
arguments, defendant raised the issue of whether plaintiff presented
sufficient evidence as a matter of law to submit the emotional distress
issue to the jury. Accordingly, we determine defendant did not forfeit
or waive this issue.
We review de novo a trial court’s ruling on a motion for judgment
notwithstanding the verdict. McClure v. Owens Corning Fiberglas
Corp., 188 Ill. 2d 102, 132 (1999). Additionally, whether expert
testimony is required to establish negligent infliction of emotional
distress is an issue of law, subject to de novo review. See Woods v.
Cole, 181 Ill. 2d 512, 516 (1998). A motion for judgment
notwithstanding the verdict should only be granted when the evidence
and inferences, viewed in the light most favorable to the nonmoving
party, “so overwhelmingly favors movant that no contrary verdict
based on that evidence could ever stand.” Maple v. Gustafson, 151 Ill.
2d 445, 453 (1992).
Defendant argues that under this court’s decision in Corgan v.
Muehling, 143 Ill. 2d 296 (1991), claims for negligent infliction of
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emotional distress must be proven by expert testimony to ensure that
any verdict for emotional distress is supported by competent evidence.
Conversely, plaintiff contends that Corgan does not require expert
testimony to establish emotional distress.
In Corgan, the plaintiff brought an action for psychological
malpractice alleging the defendant therapist violated his duties when
he engaged in sexual relations with her under the guise of therapy.
This court examined the issue of whether a plaintiff must allege
physical symptoms to support a claim for emotional distress. In
rejecting such a requirement, we stated:
“[L]ack of precision is not a justifiable reason to preclude
recovery, as expert witnesses such as psychiatrists,
psychologists and social workers are fully capable of providing
the jury with an analysis of a plaintiff’s emotional injuries. ***
***
*** [T]his court has not lost its faith in the ability of jurors
to fairly determine what is, and is not, emotional distress.
Furthermore, the women and men of the mental health care
field have made significant improvements in the diagnosis,
description and treatment of emotional distress.” Corgan, 143
Ill. 2d at 311-12.
In reaching our conclusion that a plaintiff need not allege physical
symptoms of emotional distress, this court quoted Knierim v. Izzo, 22
Ill. 2d 73 (1961):
“ ‘The stronger emotions when sufficiently aroused do
produce symptoms that are visible to the professional eye and
we can expect much more help from the men of science in the
future. [Citation.] In addition, jurors from their own
experience will be able to determine whether *** conduct
results in severe emotional disturbance.’ ” Corgan, 143 Ill. 2d
at 311-12, quoting Knierim, 22 Ill. 2d at 85.
We agree with plaintiff that Corgan does not require expert
testimony to establish emotional distress. The absence of medical
testimony does not preclude recovery for emotional distress. Rather,
“[t]he existence or nonexistence of medical testimony goes to the
weight of the evidence but does not prevent this issue from being
submitted to the jury.” Clark v. Owens-Brockway Glass Container,
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Inc., 297 Ill. App. 3d 694, 701 (1998).
Defendant argues that Hiscott v. Peters, 324 Ill. App. 3d 114
(2001), supports his argument that a plaintiff cannot prove a negligent
infliction of emotional distress claim without expert testimony. In
Hiscott, the plaintiffs sought to recover for negligent infliction of
emotional distress allegedly resulting from an automobile accident but
did not present medical proof of emotional distress. Hiscott held that
the plaintiffs failed to support their claim of emotional distress with
expert medical proof. Hiscott, 324 Ill. App. 3d at 126. Hiscott
concluded that this court’s statement in Corgan “that it ‘has not lost
its faith in the ability of jurors to fairly determine what is, and is not,
emotional distress’ (Corgan, 143 Ill. 2d at 312)” does not mean “that
all plaintiffs involved in personal injury actions may seek damages for
negligently inflicted emotional distress without medically verifiable
proof.” Hiscott, 324 Ill. App. 3d at 126. The appellate court
concluded that the plaintiffs’ testimony “more appropriately [fell]
under the definition of ‘loss of a normal life’ ” than emotional distress.
Hiscott, 324 Ill. App. 3d at 127. We determine that the court in
Hiscott misread the holding in Corgan. Accordingly, we overrule the
portions of Hiscott limiting Corgan to its facts and requiring all claims
for severe emotional distress to be supported by expert medical proof.
See Hiscott, 324 Ill. App. 3d at 126. We hold that expert testimony,
while it may assist the jury, is not required to support a claim for
negligent infliction of emotional distress.
This court’s recent decision in People v. Hudson, 228 Ill. 2d 181
(2008), further supports our conclusion. In Hudson, the trial court
allowed a 16-year-old victim of a home invasion to present lay
testimony to establish her psychological trauma. On appeal, the
defendant argued that expert testimony was required to establish
psychological harm. This court held that “jurors could reasonably find,
without the assistance of expert testimony, that the circumstances of
the offense were such as to cause psychological injury to a 16-year-
old girl.” Hudson, 228 Ill. 2d at 199. Hudson did recognize, however,
that expert testimony may be required in some cases to prove
psychological injury, but it was unnecessary given the facts of that
case.
We believe the circumstances of this case are similar to those in
Hudson. Based on personal experience alone, the jury could
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reasonably find that the circumstances of this case caused plaintiff
emotional distress. Plaintiff explicitly testified on her experience of
having the deceased infant protrude from her body for over an hour
while awaiting Dr. Garcini’s arrival. Plaintiff, the infant’s father, and
plaintiff’s mother all testified about plaintiff’s behavior and emotional
state following the event. The record sufficiently established that
plaintiff suffered emotional distress.
Defendant also contends expert proof of causation is necessary
when there is more than one possible cause of the emotional distress
“to ensure that the recovery is only for compensable emotional injuries
proximately caused by the event for which defendant was found liable,
and not for grief suffered, or other emotional distress resulting from
other causes for which defendant is not liable.” According to
defendant, causation is at issue here when plaintiff simultaneously lost
her infant and suffered a traumatic event by having the infant
protruding from her body until defendant’s arrival. Defendant surmises
that expert testimony would have established whether the delay in
delivering the deceased infant caused the entire emotional injury, as
opposed to the death of the infant.
Here, plaintiff’s testimony established that the emotional distress
she experienced derived directly from defendant’s delay in delivering
the deceased infant and not from the death of her child. Plaintiff
testified that she was depressed, and could not eat, or sleep. She could
only think about laying there for an hour and 10 minutes, and there
was nothing she could do but “sit there like that with my baby.” She
further testified that she has these thoughts “[a]ll the time” and she has
had thoughts of suicide because “[i]t was so horrible” and “I’m always
reminded of that hour and ten minutes that I sat there with him.”
Viewing the evidence in the light most favorable to the plaintiff as
we must here, the trial testimony established that she suffered
emotional distress because of defendant’s delay in delivering the
deceased baby. We cannot say that the evidence so overwhelmingly
favored defendant that no contrary verdict could ever stand. Maple,
151 Ill. 2d at 453. Accordingly, we hold defendant is not entitled to
a judgment notwithstanding the verdict due to the lack of expert
testimony on the issue of plaintiff’s emotional distress.
In the alternative, defendant argues he is entitled to a judgment
notwithstanding the verdict because the verdict against him violates
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the single-recovery rule. Defendant also argues that if the single-
recovery rule is inapplicable in this case, that he is entitled to a setoff
for the amount paid to plaintiff by the hospital.
We first address defendant’s argument that the single-recovery
rule prohibits plaintiff from seeking recovery from him for emotional
distress. According to defendant, plaintiff suffered a single emotional
distress injury. The jury in the first trial determined the amount of
plaintiff’s damages for that injury, and plaintiff accepted full payment
in satisfaction of the judgment amount against the hospital. Defendant
contends that the single-recovery rule prohibits plaintiff from seeking
a second recovery from him for the same emotional distress injury.
Again, our standard of review for a trial court’s ruling on a motion
for judgment notwithstanding the verdict is de novo. McClure, 188 Ill.
2d at 132. Generally, obtaining a judgment against one tortfeasor will
not bar a plaintiff from bringing claims against any other tortfeasors.
Saichek v. Lupa, 204 Ill. 2d 127, 137 (2003). A plaintiff may,
however, receive only one full compensation for his or her injuries,
and double recovery for the same injury is not allowed. Saichek, 204
Ill. 2d at 137. “The initial judgment, however, will normally serve as
a limit on the plaintiff’s entitlement to redress.” Saichek, 204 Ill. 2d at
137.
Plaintiff argues the appellate court correctly found that defendant
failed to preserve this issue by raising it for the first time in a posttrial
motion. We agree with plaintiff that defendant has forfeited his right
to claim the single-recovery rule prohibits plaintiff from seeking
damages from defendant for emotional distress.
Defendant did not claim the single-recovery rule until he filed his
posttrial motion. The basis for defendant’s claim, however, arose at
the end of the first trial. Defendant had multiple opportunities to raise
this theory before the second trial concluded: (1) as an affirmative
defense in the second trial; (2) through pretrial motions in limine in
the second trial; (3) by filing a motion for direct verdict in the second
trial; and (4) during the jury instruction conference in the second trial.
Due to defendant’s failure to raise this issue before the entry of the
verdict after the second trial, plaintiff had no notice or opportunity
during trial to defend against defendant’s claim. Thus, defendant
forfeited his right to assert the single-recovery rule by raising this issue
for the first time in his posttrial motion. See MidAmerica Bank, FSB
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v. Charter One Bank, FSB, 232 Ill. 2d 560 (2009).
Finally, we address defendant’s argument that he is entitled to a
setoff in the amount paid by the hospital to plaintiff. We held in our
original opinion that defendant forfeited his setoff claim by raising it
for the first time in his posttrial motion. Relying on MidAmerica Bank,
we reasoned that section 2–608 of the Code of Civil Procedure (735
ILCS 5/2–608 (West 2002)) required a setoff claim to be raised as a
cross-claim in the defendant’s answer. Upon consideration of
defendant’s petition for rehearing, we are persuaded that a
modification to this court’s opinion is necessary.
In his petition for rehearing, defendant argues that this court
improperly concluded that he forfeited his claim for a setoff and urges
this court to address the issue on the merits. According to defendant,
a defendant’s request for setoff to reflect amounts paid by settling
defendants is in the nature of an enforcement action and a setoff that
is not a counterclaim to be evaluated by the trier of fact may be
brought at any time. See Star Charters v. Figueroa, 192 Ill. 2d 47,
48-49 (2000). In Star Charters, this court held that a motion for setoff
may be brought after trial, as it is in the nature of an enforcement
action and does not arise as a result of the trial.
The term “setoff” is used in two distinct ways. In one sense, a
setoff “ ‘refers to the situations when a defendant has a distinct cause
of action against the same plaintiff who filed suit against him’ and is
subsumed procedurally under the concept of counterclaim.”
Matsushita Electric Corp. of America v. Home Indemnity Co., 907 F.
Supp. 1193, 1198 (N.D. Ill. 1995), quoting Hentze v. Unverfehrt, 237
Ill. App. 3d 606, 612 (1992). Applying this meaning, a setoff may
refer to a situation when the defendant claims that the plaintiff has
done something that results in a reduction in the defendant’s damages.
When a defendant pursues this type of setoff, the claim must be raised
in the pleadings. See MidAmerica Bank, 232 Ill. 2d at 574-75.
In another sense, however, the term “setoff” may refer to a
defendant’s request for a reduction of the damage award because a
third party has already compensated the plaintiff for the same injury.
This occurs, for example, when a codefendant who would be liable for
contribution settles with the plaintiff. This type of setoff may be raised
at any time. See Star Charters, 192 Ill. 2d 47.
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In this case, defendant did not have a cause of action against
plaintiff. Rather, defendant sought a reduction in damages because a
third party settled with plaintiff. Thus, defendant’s setoff request
constitutes an enforcement action rather than a counterclaim. Pursuant
to Star Charters, defendant’s claim for a setoff was not forfeited
simply because it was not raised in the pleadings. Accordingly, we
now address defendant’s claim that he is entitled to a setoff in the
amount paid by the hospital to plaintiff.
Defendant argues that this case is analogous to Saichek v. Lupa,
204 Ill. 2d 127 (2003), and that he is entitled to a setoff of the full
$175,000 paid by the hospital. Relying on Saichek, defendant
contends the payment was in satisfaction of the judgment for
plaintiff’s emotional damages rendered against the hospital in the first
trial and was not a settlement. We conclude that Saichek is readily
distinguishable.
In Saichek, a default judgment was entered against one of two
defendants, and the plaintiff brought nonwage garnishment
proceedings to collect the default judgment. No appeal was taken. The
defendant’s insurance carrier paid the judgment, and the parties
entered into a “Satisfaction Release of Judgment” releasing the
judgment against only the insured and the carrier while expressly
retaining the pending cause against the second defendant. Defendant
here argues that some language in the Saichek agreement is similar to
language in the instant agreement. He fails to recognize the
significance of additional language in the agreement stating that the
document broadly released and discharged the hospital, the individual
nurses, “and any other employees, officers, agents, personal
representatives, assignee and any other persons or firms who are or
might be liable from all claims, demands or rights of action which
[Toni Thorton, individually and as special administrator of the estate
of Jason Ebner, deceased,] or any of us, or any person or firm acting
or claiming to act in my behalf, now have or might ever have, because
of loss or expense, injuries or damages to person. or property, both
known or unknown, resulting or to result from any hospital care on or
about August 28, 2000 at any facility operated by Silver Cross
Hospital wherein the undersigned claimant asserts negligence,
malpractice or other malfeasances on the part of Silver Cross
Hospital, its agents, employees, officers or representatives.” The
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agreement also stated that the “[p]ayment shall be the full, final and
complete satisfaction of any and all claims, judgments, or causes of
action as between said Plaintiff and Silver Cross Hospital.” Moreover,
the parties “SPECIFICALLY UNDERSTOOD AND AGREED that
this settlement is FULL, COMPLETE AND FOREVER FINAL, but
is NOT to be construed as an admission of any legal liability for any
of the consequences of the aforesaid incident, on the part of any of the
persons and firms thereby released.” (Emphases added.) Those
provisions are inconsistent with the conclusion that the agreement was
a purely satisfaction of judgment and not a settlement.
Moreover, the facts underlying the agreements in the two cases
are far different. Here, the parties entered into the settlement
agreement while posttrial litigation was still ongoing. The parties’
settlement agreement released multiple claims against both the hospital
and the nurses, and no judgment against the nurses had even been
entered. In contrast, the agreement in Saichek did not release any
unresolved claims. Instead, the agreement acknowledged only that the
judgment had been satisfied. In addition, Saichek reviewed the
dismissal of the plaintiff’s lawsuit against the second defendant, not
the propriety of a setoff after the entry of judgment in that case.
Accordingly, we reject defendant’s contention that Saichek supports
his position that the agreement here was a mere satisfaction of the
judgment, justifying a setoff of the full payment received by plaintiff,
and not a settlement, requiring an allocation of the settlement
proceeds.
The determination of whether a defendant is entitled to a setoff is
a question of law and, therefore, subject to de novo review. Board of
Trustees of Community College District. No. 508 v. Coopers &
Lybrand, 208 Ill. 2d 259, 266 (2003). Where, as here, the setoff is in
the nature of an enforcement action, the Joint Tortfeasor Contribution
Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2002))
controls. Section 2(c) of the Contribution Act provides:
“When a release or covenant not to sue or not to enforce
judgment is given in good faith to one or more persons liable
in tort arising out of the same injury or the same wrongful
death, it does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms so
provide but it reduces the recovery on any claim against the
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others to the extent of any amount stated in the release or the
covenant, or in the amount of the consideration actually paid
for it, whichever is greater.” 740 ILCS 100/2(c) (West 2002).
Section 2(c) is intended to prevent double recovery. Pasquale v.
Speed Products Engineering, 166 Ill. 2d 337, 368 (1995). Section
2(c) also “ensures that a nonsettling party will not be required to pay
more than its pro rata share of the shared liability.” Pasquale, 166 Ill.
2d at 368. Generally, a nonsettling party seeking a setoff bears the
burden of proving what portion of a prior settlement was allocated or
attributable to its share of the liability. Pasquale, 166 Ill. 2d at 369.
Here, plaintiff’s $175,000 settlement with the hospital specifically
provided that plaintiff was not settling her claims against defendant.
The settlement was not merely for damages sought by Toni Thornton,
individually, but also for damages sought by Toni Thornton, as special
administrator of the estate of Jason Ebner, deceased. In addition, it
released a variety of claims against the hospital as well as against the
individual nurses who had not been found liable prior to settlement.
The judgment against defendant in the second trial, however, was only
for Toni’s individual claim of negligent infliction of emotional distress.
Defendant argues that he need not establish the proper allocation
of the settlement proceeds under the rationale in Patton v. Carbondale
Clinic, S.C., 161 Ill. 2d 357 (1994). We reject that argument because
Patton involved a defendant who was not a party to the case
underlying the settlement, unlike defendant here, making its rationale
inapplicable. Defendant also contends he is entitled to a setoff of the
full settlement amount but admits he has failed to offer any proof of
the proper allocation based on his share of the liability. Given the
multiple parties, injuries, and claims settled in plaintiff’s agreement
with the hospital, the allocation of the full settlement proceeds to set
off defendant’s liability for only the negligent infliction of emotional
distress cannot be justified in the absence of any supporting proof. No
independent judicial determination of the proper allocation is possible.
Accordingly, we hold that the trial court properly denied defendant’s
request for a setoff.
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III. CONCLUSION
We hold that expert testimony is not required to support a claim
for negligent infliction of emotional distress. We further hold that
defendant has forfeited the single-recovery rule and is not entitled to
a setoff. We therefore affirm the judgment of the appellate court.
Affirmed.
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