Graham v. Northwestern Memorial Hospital , 2012 IL App (1st) 102609 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Graham v. Northwestern Memorial Hospital, 2012 IL App (1st) 102609
Appellate Court KAREN GRAHAM, Independent Administrator de bonis non of the
Caption Estate of MARILEE GRAHAM, Deceased, Plaintiff-Appellee, v.
NORTHWESTERN MEMORIAL HOSPITAL, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-2609
Filed February 3, 2012
Rehearing denied February 28, 2012
Held In an action arising from the suicide of plaintiff’s decedent while an
(Note: This syllabus involuntary patient at defendant hospital, the trial court’s order granting
constitutes no part of a new trial on the ground that defense counsel’s conduct during the trial
the opinion of the court prejudiced the jury against plaintiff was reversed as an abuse of
but has been prepared discretion, but the trial court did not abuse its discretion in granting
by the Reporter of plaintiff a new trial based on the determination that instructing the jury
Decisions for the on contributory negligence was an error where the evidence supported the
convenience of the ruling that plaintiff’s decedent was completely devoid of reason at the
reader.)
time of her suicide; however, limiting the new trial to damages only was
an abuse of discretion where no evidence supported the conclusion that
the erroneous instruction impacted the calculation of damages and the
only fair remedy was to order a new trial on all issues.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-13009; the
Review Hon. Thomas E. Flanagan, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Donohue Brown Mathewson & Smyth LLC, of Chicago (Richard H.
Appeal Donohue, Sherrie M. Arrigo, and Karen Kies DeGrand, of counsel), for
appellant.
Barbara D. Klein, of Barbara D. Klein & Associates, and Leslie J. Rosen,
of Leslie J. Rosen Attorney at Law, both of Chicago, for appellee.
Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justices Lampkin and Palmer concurred in the judgment and opinion.
OPINION
¶1 Following a jury verdict in favor of the plaintiff, the circuit court granted a new trial on
the issue of damages only. Northwestern Memorial Hospital (Northwestern Memorial) was
found liable for the suicide of the plaintiff’s decedent, Marilee Graham, and the jury awarded
the plaintiff $490,196. The jury found Marilee 49% at fault, reducing the damages award to
$250,000. On the plaintiff’s posttrial motion, the circuit judge ruled that he erroneously
instructed the jury on contributory negligence and that defense counsel engaged in prejudicial
conduct. Under an abuse of discretion review, we conclude reasonable minds could differ on
the circuit court’s decision to grant a new trial based on the erroneous instruction and affirm
that ruling. However, the record fails to support the conclusion that the erroneous instruction
impacted the damages award; we remand for a new trial on all issues.
¶2 BACKGROUND
¶3 Marilee Graham was a patient in the psychiatric unit of Northwestern Memorial when
she took her own life on August 6, 2004. She was a 49-year-old woman with a history of
mental illness and had attempted suicide on previous occasions. At 4:30 p.m. on August 5,
Chicago police brought Marilee to Swedish Covenant Hospital (Swedish Hospital). The
police had been called after her family feared Marilee had attempted suicide by ingesting
Klonipin (pills containing benzodiazepine) and consuming a bottle of wine. Before taking
the pills with the wine, Marilee wrote goodbye e-mails to her sister and her boyfriend. Upon
arrival at Swedish Hospital, Marilee was combative, crying, and saying she wanted to die.
Doctors placed Marilee in physical restraints. Marilee was placed on medications to calm her
mood. Swedish Hospital notified Marilee’s long-time psychiatrist Dr. Fabian Carbonell of
her condition, including her possible attempted suicide. Marilee refused admission to the
hospital by consent. Doctors at Swedish Hospital concluded that Marilee was a danger to
herself and, with Dr. Carbonell’s concurrence, admitted Marilee against her will. Following
her involuntary admission, Dr. Carbonell arranged for Marilee to be transported that same
day to Northwestern Memorial for in-patient treatment.
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¶4 During Marilee’s transfer to Northwestern Memorial by ambulance, she remained in
restraints. The admitting nurse at Northwestern Memorial, Oscar Perry, spent an hour with
Marilee. He concluded that she no longer posed a danger to herself and released her from
restraints. At this time, Marilee was irritable, yet cooperative. Dr. Shane Spicer, a psychiatric
resident at Northwestern Memorial, evaluated Marilee on the night of August 5. Dr. Spicer
concluded that Marilee did not pose an imminent risk of harming herself. At approximately
midnight, Marilee went to sleep. The staff allowed Marilee to rest overnight undisturbed as
part of the typical treatment plan for psychiatric patients. A mental health worker took her
vital signs at 6 a.m. At 6:27 a.m., Marilee awoke for the day.
¶5 At 11 a.m. on August 6, Dr. Carbonell, along with Northwestern Memorial nurse Jason
Brigham, examined Marilee. At that time she was hostile and combative. Dr. Carbonell
found it difficult to engage her in conversation. Marilee stated she wanted to leave the
hospital and pounded on a window. She spit at her caretakers and threw a plastic container
in Dr. Carbonell’s direction. She tried to bite one of the staff members. She was screaming
and using profanity.
¶6 Marilee told Dr. Carbonell she was upset about being taken off her Hepatitis C
medication, Interferon. She had the unfounded fear that without Interferon she faced an
imminent and painful death. Dr. Carbonell noted that Marilee’s mood went from very angry
to very sad. She was thin, disheveled, and had poor psychomotor agitation. When attempts
to calm her failed, Dr. Carbonell ordered Marilee be placed in restraints. He instructed nurse
Brigham to administer the antipsychotic drug, Haldol; lithium, for her bipolar disorder; and
Atavan, to calm her impulsive behavior.
¶7 During this exam, Marilee denied having thoughts of suicide. Her chief concern was to
leave the hospital. When called to testify as an adverse witness, Dr. Carbonell agreed that
Marilee was “falling apart mentally and emotionally” and was “in severe emotional pain” on
the morning of August 6. Marilee told Dr. Carbonell that she was sorry that she did not die
the previous day. Dr. Carbonell certified Marilee for involuntary commitment; he found she
posed a danger to herself, had impaired judgment, and required hospital staff supervision to
keep her safe. Dr. Carbonell ordered Marilee to remain secluded and in restraints and
directed the staff to maintain continuous visual observation. The order had an expiration time
of 3 p.m., but the attending nurses could extend the expiration time upon consultation with
a doctor. Dr. Carbonell expected nurse Brigham to reassess Marilee and release her from
restraints when appropriate.
¶8 Consistent with Dr. Carbonell’s testimony regarding Marilee’s condition at 11 a.m., nurse
Brigham noted that Marilee was “assaultive, restless, crying, and threatening.” An entry on
Marilee’s chart at 11:15 a.m. by another staff member noted that Marilee was “restless and
crying” and pulling at her restraints. At 11:30 a.m., a staff member wrote that Marilee was
restless and crying and attempting to bite her left wrist restraint. At 11:45 a.m. a similar entry
was made that Marilee was restless and pulling at her restraints. During an evaluation around
noon by nurse Brigham, Marilee stated she did not want to hurt herself. Nurse Brigham
removed Marilee’s restraints. She remained quiet for the remainder of nurse Brigham’s shift,
which ended at 3 p.m.
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¶9 The staff continued with visual observations of Marilee at 15-minute intervals. At
approximately 3 p.m., Marilee complained of stomach pain and cramps. She was awake in
her room from 3:30 to 9 p.m.. Darryl Calvin, a mental health worker, checked her every 15
minutes between 4 and 8:45 p.m. That evening, nurse Jane McKeon was assigned to care for
Marilee, along with eight or nine other patients. She did not have independent recollection
of her interactions with her patients that evening, but she testified that between 4 and 4:15
p.m., it was her practice to introduce herself to the patients, including Marilee. She would
have asked Marilee how she was feeling, whether she felt like hurting herself or anyone else,
and if she needed anything.
¶ 10 At 4:15 p.m., nurse Gloria Johnson saw Marilee on the telephone as she passed through
the nurses’ station. At approximately 5 p.m., nurse McKeon administered medication to
Marilee. It was her custom and practice to reintroduce herself when administering
medication, during which she would engage in a brief conversation with the patient. She
would have watched Marilee closely to make sure she swallowed the medication. Marilee
was in her room alone most of the evening. She refused to eat dinner. Sometime between 6
and 7 p.m., nurse McKeon saw Marilee near the phones by the nurses’ station, but she could
not recall whether Marilee was talking on the phone. Nurse McKeon testified that a patient
being out of her room and talking on the telephone would be a positive sign.
¶ 11 At 8:45 p.m., mental health worker Calvin performed a visual observation of Marilee.
Marilee nodded her head at Calvin. Between 9 and 9:45 p.m., mental health worker Paulette
Carter performed routine checks of Marilee. Carter testified that Marilee was sleeping during
this period. At 9:20 p.m., nurse Johnson passed Marilee’s room and saw her lying on her
stomach asleep. Carter saw Marilee alive in her room between 9:40 and 9:43 p.m. At 9:45
p.m., nurse McKeon entered Marilee’s room and found her hanging from a hinge on the
bathroom door with a bedsheet tied around her neck. Several nurses cut the sheet and carried
Marilee to the bed. They were unable to resuscitate her.
¶ 12 At trial, both fault and damages were contested. Over the plaintiff’s objection, the judge
instructed the jury on contributory negligence. The judge told the jury that the damages
award would be reduced by the percentage of fault it assigned to Marilee. He also informed
the jury that if it found Marilee more than 50% negligent, the defendant would be found not
liable. The jury found Marilee 49% at fault and awarded $490,196 in damages. The fault
assigned to Marilee reduced the award to $250,000. The defendant’s responsibility for the
reduced damages was zero based on a pretrial settlement with a codefendant.
¶ 13 In her posttrial motion seeking a new trial on damages, the plaintiff faulted the judge for
instructing on contributory negligence. The plaintiff also argued defense counsel’s
misconduct prejudiced the jury against the plaintiff. The court did not elaborate on its ruling
that it erred in instructing the jury on contributory negligence, which it concluded warranted
a new trial. “The factual evidence in this case requires the refusal of submitting comparative
negligence to the jury.” The court also provided little explanation for a new trial triggered
by defense counsel’s purported misconduct: “Considering the totality of the evidence and the
conduct of the case.” The court ruled the new trial would be limited to damages only.
¶ 14 We granted the defendant’s petition for leave to appeal.
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¶ 15 ANALYSIS
¶ 16 The defendant presents a three-pronged attack on the order granting a new trial. The
defendant claims that before reversible error can arise from instructing the jury on
contributory negligence, the trial judge must find that Marilee was “completely devoid of
reason” at the time of her death, a showing the defendant contends cannot be made on the
record before us. The defendant also claims the circuit court abused its discretion by finding
that the alleged misconduct by defense counsel affected the outcome of the trial. Finally, the
defendant disputes that a new trial limited to the issue of damages is warranted even if the
jury was improperly instructed on contributory negligence and misconduct occurred at trial.
We address the three claims separately.
¶ 17 Instructing on Contributory Negligence
¶ 18 The question of whether, in a negligence action, the jury should be instructed on
contributory negligence involving a mentally ill patient that commits suicide has proved a
difficult question for courts to answer. There are competing views among jurisdictions
nationwide. See Hobart v. Shin, 185 Ill. 2d 283, 290 (1998), for a list of cases.
¶ 19 In Hobart, our supreme court concluded that only in a rare case should the trial court
refuse to instruct the jury on contributory negligence arising from the suicide of a mentally
ill patient. Id. The court held contributory negligence is generally a question of fact for the
jury to decide even when suicide is involved. Id. The appellate court had held that
contributory negligence should not apply to suicide patients because their mental illness
deprives them of their ability to exercise ordinary care for their own safety. Hobart v. Shin,
292 Ill. App. 3d 580, 586-87 (1997) (citing Peoples Bank of Bloomington v. Damera, 220
Ill. App. 3d 1031, 1035-36 (1991)). The supreme court rejected that view. Hobart, 185 Ill.
2d at 290. Instead, the court quoted with approval the holding in DeMartini v. Alexander
Sanitarium, Inc., 13 Cal. Rptr. 564 (Cal. Dist. Ct. App. 1961):
“ ‘[T]he issue of contributory negligence of a mentally disturbed person is a question of
fact; unless, of course, the evidence discloses that the person whose actions are being
judged is completely devoid of reason. If he is so mentally ill that he is incapable of
being contributorily negligent, he would be entitled to have the jury so instructed ***.
But only in cases in which the evidence would admit to no other rational conclusion
would plaintiff be entitled to have the issue determined as a matter of law.’ ” Hobart, 185
Ill. 2d at 290 (quoting DeMartini, 13 Cal. Rptr. at 567).
¶ 20 Thus, in the typical case, it falls to the jury to determine whether a mentally disturbed
person is contributorily negligent. An exception to this rule applies when the evidence
permits that the decedent was “ ‘completely devoid of reason’ ” as the only rational
conclusion that can be reached. Id. (quoting DeMartini, 13 Cal. Rptr. at 567). Only then
should a jury not be instructed on contributory negligence. Id.
¶ 21 While the determination that Marilee was “completely devoid of reason” concerns a legal
ruling by the circuit court as directed by Hobart, a reviewing court examines that ruling for
an abuse of discretion. See Junker v. Ziegler, 113 Ill. 2d 332, 340 (1986) (“We must
determine here *** whether the trial judge abused his discretion in determining that the
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verdict was against the manifest weight of the evidence.”). This is so because our review
concerns whether the jury should have been instructed on contributory negligence, a decision
that rests within the circuit court’s discretion. Hobart, 185 Ill. 2d at 294. Under the
circumstances of this case, the abuse of discretion applies because the circuit court granted
the plaintiff a new trial. See Ruffin v. Boler, 384 Ill. App. 3d 7, 17 (2008) (deferential
standard applies to the decision of whether to grant a new trial because the trial judge “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” (internal
quotation marks omitted)). We will reverse the grant of a new trial only when an affirmative
showing is made that the court abused its discretion. Cardona v. Del Granado, 377 Ill. App.
3d 379, 385 (2007). “ ‘A court abuses its discretion only where its ruling is arbitrary,
fanciful, or unreasonable, or where no reasonable person would adopt the court’s view.’ ”
Id. (quoting Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504, 513 (2005)).
¶ 22 In this case, at the conclusion of the evidence, the trial judge ruled the jury would be
instructed on contributory negligence. However, during posttrial proceedings, the judge
reassessed the evidence and determined that it supported only one rational conclusion–that
Marilee was completely devoid of reason when she committed suicide. The trial judge cited
the evidence as to Marilee’s mental state to reach this legal determination against the
backdrop of the jury’s finding of liability against Northwestern Memorial. Northwestern
Memorial claims that in doing so the trial judge abused his discretion.
¶ 23 Under the agreed-upon standard of review, the question before us is whether the grant
of a new trial was “arbitrary, fanciful, or unreasonable” based on the decision that Marilee
was “completely devoid of reason” at the time of her death, in light of the record evidence.1
Id. Marilee had attempted to kill herself less than 48 hours earlier. On the morning of her
death, she was irrational, fighting with doctors, and attempting to bite hospital staff. Nine
hours before killing herself, Marilee was so out of control that she was placed in restraints
for her own safety. At the time Marilee was placed in restraints on August 6, she was also
given medications to control her outbursts. The trial judge was in a much better position,
based on the evidence presented, to assess whether the complacency Marilee displayed
during the late afternoon and evening hours on August 6 stemmed from the medications
Marilee received. Ultimately, we defer to the trial court’s conclusion that the record evidence
supported only one rational conclusion–that Marilee was completely devoid of reason at the
time she committed suicide. Her suicide attempt the day before, her expression to Dr.
Carbonell that she regretted not having been successful in her attempt, Dr. Carbonell’s
assessment that Marilee was “falling apart mentally and emotionally” and was “in severe
emotional pain” on the morning of August 6, which assessment warranted placing Marilee
1
In her brief, the plaintiff cites the testimony of the expert witness and Marilee’s treating
psychiatrist that while a patient at Northwestern Memorial Marilee was unable to protect herself and
provide for her own basic needs. That, however, is the standard to determine whether a patient
should be committed against her will. The standard announced by the Illinois Supreme Court for
determining whether a contributory negligence instruction is appropriate is whether the patient was
“completely devoid of reason,” which is the standard the circuit court properly applied below.
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in restraints and administering medications to calm her mood, all support the trial court’s
ruling.
¶ 24 We find no affirmative evidence in the record contrary to the circuit court’s ruling. The
hospital personnel that interacted with Marilee during the late afternoon and evening hours
failed to provide direct testimony of Marilee’s mental state. Under the abuse of discretion
standard, we cannot say that no reasonable person would adopt the trial court’s view that
Marilee was completely devoid of reason to render its instruction on contributory negligence
reversible error. If this case does not satisfy Hobart’s “completely devoid of reason”
standard, it is difficult to imagine a case that proceeds to trial that would. Where both the
plaintiff and defendant agree that the decedent was completely devoid of reason at the time
of suicide, it is reasonable to expect that such a case would settle.
¶ 25 The present case differs substantially from Hobart.2 In Hobart, the decedent, Kathryn
Hobart, was a 27-year-old woman that suffered from depression and anxiety disorder. Id. at
286-87. Kathryn was a student at the University of Illinois at Chicago who sought treatment
for her depression. Id. at 286. On November 23, 1988, she was voluntarily admitted to the
hospital. Id. at 287-88. She was released on December 12 and given a prescription for
antidepressants. Id. at 288. She saw her psychologist on December 21 at which time she
seemed upbeat and expressed no thoughts of suicide. Id. She asked her psychiatrist for a
larger refill for her antidepressant prescription to save on multiple trips to the pharmacy. Id.
The doctor agreed and prescribed a one-month supply. Id. Kathryn saw a psychologist three
times during the month of December and at no time did she display suicidal tendencies. Id.
In early January, Kathryn again suffered a bout of depression. Id. She refused to see either
of her doctors. Id. Two days later, she checked into a hotel using a fictitious name; she
committed suicide by ingesting an overdose of her antidepressant pills. Id. at 288-89.
Kathryn’s mother filed suit, contending that the defendant doctor “deviated from the required
standard of care by prescribing an excessive amount of antidepressant.” Hobart, 292 Ill. App.
3d at 581. The defendant doctor was “a family practitioner at the University of Illinois who
coordinates his patients’ overall health.” Id. at 582. Following her discharge from the
hospital, the defendant doctor observed Kathryn to be “positive and upbeat.” Id. at 582-83.
The defendant doctor gave Kathryn the one-month supply of the antidepressant in response
to Kathryn’s “concern about running out of medication and about the cost of filling frequent
small prescriptions.” Id. at 583. We find little doubt that Kathryn’s activities outside the
confines of a hospital demonstrated an awareness that precluded a legal determination that
she was devoid of reason. The circumstances present in Hobart are a far cry from the
circumstances present in the instant case.
¶ 26 Here, Marilee had been involuntarily admitted to Northwestern Memorial because she
posed a serious risk of injuring herself. Marilee had attempted suicide less than 48 hours
2
The defendant argues that distinguishing Hobart on its facts is misguided because the
standard the supreme court announced applies even if the case is distinguishable. While this is true,
the issue before us is whether this is one of those rare cases where the decedent met the “devoid of
reason” standard. Contrasting the facts in Hobart to the facts in the instant case assists in our review
of the circuit court’s ruling.
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earlier and had told her doctor the very day of her death that she wished she had succeeded
in killing herself. Marilee hanged herself within a very small window of only a few minutes.
Finally, and most importantly, the jury concluded that Northwestern Memorial was negligent
in its care of Marilee, even in the face of a contributory negligence instruction. While we
apply Hobart’s standard, the facts of the instant case drive us to a different result.
¶ 27 Nevertheless, the defendant urges that the circuit court’s ruling is at odds with the public
policy justification expressed by our supreme court that doctors are not “absolute insurer[s]”
for psychiatric patients who pose a suicide risk in Hobart. Hobart, 185 Ill. 2d at 290-91. The
argument is that if too great a burden is imposed on doctors that care for patients like
Marilee, doctors may decline to treat such patients, leaving them with nowhere to turn for
medical care. Id. at 291. We do not agree that under the facts of this case, the ruling by the
circuit court that the evidence permitted no rational conclusion other than that Marilee was
devoid of reason would make the defendant an “absolute insurer” of Marilee. Many medical
negligence cases result in a verdict for the medical professional even in the absence of a
contributory negligence instruction. The issue of whether a mentally ill patient was the sole
proximate cause of the plaintiff’s injury remains an issue for the jury, the evidence of which
may favor a verdict for the defendant. See Hollis v. R. Latoria Construction, Inc., 108 Ill. 2d
401, 412 (1985) (Ryan, J., dissenting) (“if the plaintiff’s conduct is the sole proximate cause
of the injury ***, the defendant is not liable”).
¶ 28 In any event, Hobart does not stand for the proposition that the public policy recognized
by our supreme court compels a contributory negligence instruction in every case involving
the suicide of a mentally ill patient. The instant case is simply one of the rare cases, as the
circuit court determined based on its reassessment of the evidence, that the only rational
conclusion that could be reached was that the decedent was completely devoid of reason.
Northwestern Memorial did not act as an “absolute insurer” for the safety of Marilee. Rather,
Northwestern Memorial was held to the standard of a similarly situated medical services
provider to protect the welfare of its patients. The circuit court, with the benefit of the jury’s
verdict, reasonably concluded that the jury should not have been instructed on contributory
negligence. Our supreme court’s decision in Hobart permits the circuit court’s ruling under
the facts of this case. Medical providers must have an incentive to properly care for patients
that pose a danger to themselves. Instructing on contributory negligence acknowledges the
reality that in all but that rare case, a plaintiff’s decedent shares a duty with the defendant to
exercise ordinary care to protect oneself, which the jury may consider in reaching its verdict.
Here, the trial judge concluded that Marilee was unable to exercise ordinary care for herself,
from which we conclude this was such a rare case.
¶ 29 The observation of the Iowa Supreme Court in addressing this perplexing problem
supports the circuit court’s conclusion. In Mulhern v. Catholic Health Initiatives, 799
N.W.2d 104 (Iowa 2011), the decedent was voluntarily committed to the hospital following
a suicide attempt. Three weeks after her release and six days after her most recent visit with
her doctor, she committed suicide. Id. at 106. The court cited the Hobart standard with
approval and held that the decedent was not “so mentally incapacitated [that] she was
incapable of being found negligent as a matter of law.” Id. at 112. The court observed: “This
scenario is unlike custodial cases involving the death or injury of an institutionalized patient
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incapable of self-care.” (Emphasis added.) Id. Thus, the rare case where a contributory
negligence instruction should not be given in a suicide case will almost certainly involve a
“custodial case” where the patient is incapable of exercising ordinary care for her or his own
welfare. Mulhern, 799 N.W.2d 104. Under the facts of this case, we cannot disagree with the
circuit court’s conclusion that as a matter of law, Marilee was incapable of protecting herself.
Based on the evidence adduced at trial, Marilee could no longer act as a reasonable person
to exercise ordinary care over her own welfare.
¶ 30 We caution, however, that our holding here should not be read as supporting a rule that
in every case involving the suicide of a plaintiff’s decedent who has been hospitalized
involuntarily, a circuit court should decline to instruct on contributory negligence, as the
plaintiff suggests. Such a bright-line rule would be at odds with the considerable discretion
a circuit court exercises in instructing a jury, which must take into account the evidence in
the case. Under Hobart, the “devoid of reason” standard is applied on a case-by-case basis.
We defer to the circuit court’s ruling that it erred in instructing on contributory negligence
in this case.
¶ 31 The circuit court’s posttrial order that it erred in instructing the jury on contributory
negligence was not an abuse of discretion under the facts of this case. The trial judge acted
within his discretion when he concluded that Marilee was “completely devoid of reason” at
the time of her death.
¶ 32 Attorney Misconduct
¶ 33 The defendant next challenges the circuit court’s ruling that defense counsel engaged in
misconduct during the trial. In her posttrial motion, the plaintiff alleged that defense counsel
committed “ongoing, continuous misconduct” throughout trial. In its order, the circuit court
explained its agreement that a new trial was warranted by defense counsel’s conduct during
the trial in only a few words: “Considering the totality of the evidence and the conduct of the
case.”
¶ 34 While we owe deference to the trial court’s exercise of its discretion, our examination
of the record fails to reveal the “conduct of the case” by defense counsel that substantially
prejudiced the jury against the plaintiff to warrant a new trial. See Grillo v. Yeager
Construction, 387 Ill. App. 3d 577, 601 (2008) (“Generally, a reviewing court will not find
reversible error due to improper comments by counsel unless a party has been substantially
prejudiced by such comments.”). Nor does the plaintiff’s brief assist our examination of the
record for the prejudicial misconduct. Without pinpoint citation to the record, the plaintiff
contends that defense counsel “engaged in an ongoing pattern of misconduct which was
intended to and did, demean the plaintiff’s counsel, their witnesses and their case.” The
plaintiff cites U.S. Bank v. YMCA of Metropolitan Chicago, 409 Ill. App. 3d 548 (2008), and
Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (2009). Neither of the cited cases provides
guidance in our review of purported misconduct by defense counsel in the instant case. We
also note that following an on-the-record exchange between plaintiff’s counsel and defense
counsel, the trial judge instructed the jury to disregard the verbal scuffle between the lawyers.
See Clayton v. County of Cook, 346 Ill. App. 3d 367, 383 (2003) (instructing the jury to
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disregard remarks cures their prejudicial impact). Following the court’s admonishment, no
similar outburst by counsel occurred.
¶ 35 Our review of the record leaves us with substantial doubt that a new trial was warranted
based on the “totality of the evidence and the conduct of the case.” We cannot defer to the
circuit court’s ruling when neither its order nor the record supports its ruling. See First
National Bank of La Grange v. Glen Oaks Hospital & Medical Center, 357 Ill. App. 3d 828,
842 (2005) (no prejudicial error shown where alleged misconduct by counsel was
unsupported by record).
¶ 36 We reverse the grant of a new trial on the issue of damages based on the purported
misconduct by defense counsel.
¶ 37 Remedy
¶ 38 Finally, the defendant argues that the circuit court abused its discretion in granting a new
trial on damages only. According to the defendant, the circuit court should have either
reinstated the original damages award without reduction for the fault of 49% attributed to
Marilee or ordered a new trial on all issues. The defendant argues the errors cited by the
circuit court to grant a new trial do not support a new trial on the issue of damages only.
¶ 39 A trial judge’s decision to grant a new trial is reviewed for an abuse of discretion. Bisset
v. Village of Lemont, 119 Ill. App. 3d 863, 865 (1983). “We allow greater latitude to the
circuit court in determining that a new trial is warranted than in denying a request for a new
trial.” Boren v. BOC Group, Inc., 385 Ill. App. 3d 248, 254 (2008). A retrial on damages only
is an exception to this general rule.
“A new trial on the question of damages only is appropriately granted ‘where (1) the
jury’s verdict on the question of liability is amply supported by the evidence; (2) the
questions of damages and liability are so separate and distinct that a trial limited to the
question of damages is not unfair to the defendant; and (3) the record suggests neither
that the jury reached a compromise verdict, nor that, in some other identifiable manner,
the error which resulted in the jury’s awarding inadequate damages also affected its
verdict on the question of liability.’ ” Balestri v. Terminal Freight Cooperative Ass’n,
76 Ill. 2d 451, 456 (1979) (quoting Robbins v. Professional Construction Co., 72 Ill. 2d
215, 224 (1978)).
¶ 40 The trial court’s order gave no explanation for the remedy of a new trial on damages
only. While an appellate court reviews the trial court’s judgment, not its reasoning (Forsberg
v. Edward Hospital & Health Services, 389 Ill. App. 3d 434, 440 (2009)), an expression of
its reasoning assists our review. To justify a new trial on damages only, the “questions of
damages and liability [must be] separate and distinct.” (Internal quotation marks omitted.)
Hollis, 108 Ill. 2d at 408. The plaintiff must also demonstrate “that, in some other
identifiable manner, the error which resulted in the jury’s awarding inadequate damages also
affected its verdict on the question of liability.” (Internal quotation marks omitted.) Id. That
is, that the verdict “was not a compromise of liability against damages.” DeFreezer v.
Johnson, 81 Ill. App. 2d 344, 348 (1967).
¶ 41 In light of our ruling that a new trial was not warranted on the purported misconduct of
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defense counsel, we limit our review of the circuit court’s ruling granting a new trial on
damages only to whether that remedy was warranted by the erroneous instruction on
contributory negligence.
¶ 42 Generally, if a verdict is tainted by an erroneous instruction then the entire verdict is
called into question, unless the instruction pertains to the issue of damages. See Balestri, 76
Ill. 2d at 455-56 (jury instruction did not adequately instruct the jury on aggravation of a
preexisting condition, justifying a new trial on damages only). It is beyond contention that
contributory negligence affects the apportionment of liability, not the calculation of damages.
Alvis v. Ribar, 85 Ill. 2d 1, 25 (1981). The plaintiff contends the contributory negligence
instruction served to taint the jury’s determination of damages, without citation to the record,
and without explaining, in an “identifiable manner,” how the jury’s determination of
damages was tainted.3
¶ 43 The defendant, on the other hand, cites Junker v. Ziegler, 113 Ill. 2d 332 (1986), for its
contention that the appropriate remedy for the jury being erroneously instructed on
contributory negligence is to reinstate the original damages award, rather than grant a new
trial on damages only. In Junker, the circuit court ruled the jury’s apportionment of fault of
65% to the plaintiff was against the manifest weight of the evidence. Id. at 340. The lower
court granted a new trial on all issues. Id. at 337. The appellate court reversed, directing that
judgment be entered on the jury’s verdict. Id. The supreme court held that a new trial was
warranted on all issues, except on the question of damages. Id. at 340. The supreme court
rejected the plaintiff’s contention that “the jury’s calculation of damages was affected by its
assessment of his contributory negligence.” Id. The supreme court reversed “the trial court’s
order granting a new trial on the issue of damages.” Id. at 342. The original jury’s damages
award would stand, modified by any contributory negligence attributed to the plaintiff as
determined in the new trial. Id. at 341.
¶ 44 The case at bar is unlike Junker, where the jury’s apportionment of fault attributed to the
plaintiff was found to be against the manifest weight of the evidence. Id. at 340. No such
claim is before us. Nor, as the supreme court wrote, did the plaintiff in Junker “allege any
evidentiary or instructional error.” Id. at 340. Here, the verdict is in accord with the evidence,
but the circuit court determined that a new trial was warranted based on an erroneous
instruction to the jury. Therefore, the remedy ordered by the supreme court in Junker to
reinstate the original damages award is not warranted here.4
¶ 45 We conclude the only fair remedy in this case is to order a new trial on all issues. It
3
At oral argument, the plaintiff argued for the first time that the contributory negligence
instruction made the “stigma” of suicide an issue in the case. This argument is both untimely and
unpersuasive in the absence of supporting authority. See Snover v. McGraw, 172 Ill. 2d 438, 449
(1996) (argument not raised in motion for a new trial is waived).
4
For much the same reason, we find the defendant’s reliance on Snover v. McGraw, 172 Ill.
2d 438, 446-47 (1996), misplaced where the supreme court affirmed the circuit court’s rejection of
the plaintiffs’ contention that the damages award of $0 for pain and suffering was neither against the
manifest weight of the evidence nor inconsistent with the award for medical expenses.
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appears this is the first case where the circuit court found the “devoid of reason” standard to
apply. The outcome in this case on retrial may well provide guidance should similar cases
arise. We note that by the very nature of suicide cases, where the decedent was unable to
exercise ordinary care for herself, it will be rare where damages and liability are so separate
and distinct as to warrant a new trial on the issue of damages only. See Balestri, 76 Ill. 2d
at 456.
¶ 46 The circuit court abused its discretion when it concluded that the erroneous instruction
on contributory negligence impacted the jury’s calculation of damages when no record
evidence supports that conclusion. A new trial on all issues necessarily follows from our
holding.
¶ 47 CONCLUSION
¶ 48 The circuit court did not abuse its discretion in granting the plaintiff a new trial on her
posttrial motion when the court determined that it erred in instructing the jury on contributory
negligence where the jury found Northwestern Memorial liable in the suicide of the
plaintiff’s decedent and the record evidence supported the court’s ruling that the plaintiff’s
decedent was completely devoid of reason at the time of her suicide. However, the court
abused its discretion in limiting a new trial to the issue of damages only when the record fails
to support the conclusion that the contributory negligence instruction impacted the jury’s
calculation of damages. We find no evidence in the record to support the circuit court’s
ruling that defense counsel’s conduct during the trial substantially prejudiced the jury against
the plaintiff; we reverse the order granting a new trial on that ground as an abuse of
discretion.
¶ 49 Affirmed in part and reversed in part; cause remanded.
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