Willis v. Morales , 2020 IL App (1st) 180718 ( 2020 )

2020 IL App (1st) 180718No. 1-18-0718
June 15, 2020
FIRST DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
ALMA WILLIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
)
v. )
)
MAURICIO MORALES, M.D.; ) No. 10 L 6049
CHING-CHONG HUANG, M.D.; )
JEFFERY FLAGG, D.D.S., M.D.; DAVID )
McCORMICK; PAUL KOWALCZYK; )
KIM PRICE; and SISTERS OF )
ST. FRANCIS HEALTH SERVICES, INC., ) The Honorable
d/b/a St. James Hospital and Health ) Kay Marie Hanlon,
Centers, Chicago Heights, Illinois, ) Judge Presiding.
and d/b/a St. James Anesthesia, )
)
Defendants-Appellees. )
JUSTICE WALKER delivered the judgment of the court, with opinion.
Presiding Justice Griffin concurred in the judgment and opinion.
Justice Hyman dissented, with opinion.
OPINION
¶1 Alma Willis sued a surgeon, two anesthesiologists, and three nurse anesthetists, claiming
that their negligence during surgery injured her. A jury returned a verdict in favor of all
defendants. Willis argues on appeal that the trial court erred (1) by granting a motion in limine
No. 1-18-0718
barring all evidence related to her claim based on res ipsa loquitur, (2) by refusing a missing
witness instruction, (3) by permitting a defense expert to testify to an opinion not expressed in
his deposition, and (4) by restricting the testimony of her experts. We find that Willis presented
sufficient evidence to permit a jury to decide whether she proved that defendants controlled
the instrumentalities that caused her injury and that the injuries would not have occurred
without negligence. We reverse and remand for a new trial at which the court must permit
Willis to present evidence and arguments related to her theory of res ipsa loquitur.
¶2 I. BACKGROUND
¶3 Willis suffered from back problems. Her doctor referred her to Dr. Jeffery Flagg, a plastic
surgeon, for treatment. Dr. Flagg scheduled a reconstruction of Willis’s right breast, a
reduction of her left breast, and a revision of her abdomen, planning to complete all three
procedures in a single surgery. Dr. Flagg told Willis the surgery would take about five hours.
¶4 Dr. Flagg performed the surgery, which took 12 hours, on May 21, 2008. When Willis
came to the recovery room, nurses noted on the chart that Willis had very swollen arms. The
nurses charted Willis’s pain on May 22 at 12:15 a.m., 1:15 a.m., 2:15 a.m., 3:15 a.m., and 4:15
a.m. Each time they recorded her pain as 4 out of 10. The hospital sent Willis home on May
22, 2008.
¶5 On May 25, 2008, Willis’s daughter brought Willis back to the hospital because Willis had
become disoriented. Medical technicians at the hospital inserted an IV line. Doctors found that
Willis had suffered pulmonary embolisms—blood clots—in both lungs after the May 21
operation. They successfully treated the embolisms. On May 30, while Willis remained
hospitalized for the treatment, nurses recorded that Willis had pain, especially in her right
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thumb, right index finger, and right middle finger since the surgery on May 21, and, according
to the notes, “doctors were aware of this complaint.” Willis again returned home.
¶6 Pain in Willis’s arm persisted. A neurologist who performed an EMG (electromyography
test) on June 17, 2008, found that Willis’s median nerve in her right arm had sustained an
injury near the elbow, and the median nerves in both arms showed damage in the carpal tunnel.
Dr. Robert Coats performed surgery on August 5, 2008, to release the pressure on the nerves
in the carpal tunnels. The surgery improved Willis’s condition, but she continued to experience
pain and a limited range of motion.
¶7 In May 2010, Willis filed a medical malpractice complaint naming as defendants the
hospital, Dr. Flagg, and the two anesthesiologists and three nurse anesthetists who participated
in the surgery. The hospital reached a settlement with Willis before trial. In count I of the
amended complaint, Willis alleged that she suffered injuries to her nerves in the course of the
surgery on May 21, and the injuries she sustained do not occur absent negligence. In a separate
count, she alleged that Dr. Flagg negligently prolonged the surgery, failed to provide treatment
that could have prevented her from developing the pulmonary embolisms, and failed to
position her arms properly for the surgery. In further counts, she alleged that both
anesthesiologists and all three nurse anesthetists failed to protect Willis’s arms during the
surgery.
¶8 After the parties completed discovery, defense counsel informed Willis that defendants
intended to present a surveillance video showing Willis using her arms and hands. Willis’s
attorneys showed the video to Willis’s expert witnesses, and all said that the video did not
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change their opinions about Willis’s injuries. Willis’s attorneys updated their discovery
responses with the opinions. Defense counsel chose not to re-depose the experts.
¶9 The circuit court scheduled the trial to start on June 22, 2017. On June 20, 2017, the court
heard numerous defense motions, including one styled as a motion in limine to bar all evidence
related to the count seeking recovery on a theory of res ipsa loquitur. The trial court granted
the motion and barred all of Willis’s experts from testifying that the injury to the median nerves
would not have occurred without negligence.
¶ 10 Dr. Mauricio Morales, the anesthesiologist who supervised Willis’s initial positioning for
the surgery, admitted that he did not remember the surgery. Based on Dr. Morales’s usual
practice, he asserted that he, Dr. Flagg, and the initial nurse anesthetist, David McCormick,
would have decided how to position Willis. They would have placed soft restraints on her arms
between the wrists and the elbows. The standard of care required rechecking Willis’s
positioning every other hour or so to ensure no problems had arisen. The surgical team likely
repositioned Willis during the surgery because a position for abdominal revisions is different
from the position used for breast surgery.
¶ 11 Dr. Ching-Chong Huang, who relieved Dr. Morales as the anesthesiologist for Willis’s
surgery after the first six hours of surgery, also had no recollection of the surgery. He agreed
that the standard of care required rechecking Willis’s positioning periodically.
¶ 12 David McCormick, the first nurse anesthetist to work on Willis’s surgery, testified that he
helped to position Willis and monitored her blood pressure and blood loss to ensure sufficient
replacement fluids throughout the surgery. He testified to the amount of fluids Willis took in
during the surgery and to the amount of fluids, including blood and urine, Willis egested.
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¶ 13 Kim Price, the nurse anesthetist who relieved McCormick, testified that she checked the
straps holding Willis’s arms, and they remained appropriately loose. She too testified about
the amounts of fluid given to Willis.
¶ 14 Paul Kowalczyk, the nurse anesthetist who relieved Price, testified that he did not
remember the surgery. Based on his usual practice, he said he used drugs to rouse Willis after
the surgery. He recorded that Willis, drowsy, did not complain of pain immediately after the
surgery. He gave her morphine. Although the nurses’ notes indicate that Willis had limited
movement of her extremities, Kowalczyk set up a pump Willis could operate by hand to
administer to herself more morphine. She used only 29.6 milligrams of morphine, although the
pump would have allowed her to use 45 milligrams. He admitted that surgeons lean on patients
“all the time.” If a nurse anesthetist saw such leaning, the anesthetist should tell the surgeon
immediately, and the surgeon should immediately move away. Kowalczyk added, “It’s not
something we would document on a regular basis.”
¶ 15 Dr. Flagg testified that during the surgery, “We were surprised by a golf ball size mass on
the chest wall.” It “changed the operation completely.” Dr. Flagg admitted that after the
operation Willis suffered a deep vein thrombosis (DVT)—a large blood clot—that moved to
her lungs and became the pulmonary embolisms requiring hospitalization on May 25, 2008.
He admitted that lengthy surgeries increase the risk of DVT. He did not prescribe
anticoagulants for Willis. He agreed that anticoagulants might have prevented the thrombosis
and consequent pulmonary embolisms. He testified, “The way you help alleviate DVT’s
postoperatively is to ambulate the patient and that is one of the orders that we put in as one of
our postoperative orders.” He admitted that the written discharge order did not mention
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ambulation. On June 25, 2008, Dr. Flagg filled out a form in which he said Willis suffered
“Postop right-hand neuropathy and pulmonary embolus.” According to the form Dr. Flagg
signed, Willis’s consequent disability began on May 21, 2008.
¶ 16 Willis testified that before the surgery she had not experienced significant problems with
her arms or hands. During recovery from surgery, Willis told the nurse her arms hurt. Later
on May 22, she complained of pain in both arms. She could not move her hands or her arms.
Her arms remained severely swollen for several days after the surgery. She described her
continuing treatments and her continuing difficulties with her arms and hands.
¶ 17 Dr. Coats testified that in July 2008 Willis told him she began to have problems with her
arms after the surgery on May 21. The EMG dated June 17, 2008, showed damage to the
median nerve near the right elbow and at both wrists. For the damage near the wrists, Dr. Coats
explained, “[t]he root cause is there’s either swelling, fluid, or other things that fill up the carpal
tunnel. And once you start filling up the space of the carpal tunnel, that takes away space from
the median nerve.” When he performed the carpal tunnel surgery, he found the median nerve
flattened, proving “there was pressure on the nerve.”
¶ 18 Karol Corey, Willis’s occupational therapist, testified about Willis’s limited progress in
improving her range of motion. Willis told Corey that the problem with her arms started after
the surgery on May 21, 2008.
¶ 19 Charles Barton, a nurse anesthetist, testified as an expert that the nurse anesthetists violated
the standard of care by infusing far too much fluid and by failing to position Willis correctly
for the procedures. Barton pointed out that the charted pain readings for Willis after the surgery
made no sense because Willis would have slept through 12:15 a.m., 1:15 a.m., 2:15 a.m., 3:15
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a.m., and 4:15 a.m., when nurses charted Willis’s pain as 4 out of 10. Barton agreed that one
would expect some swelling as a response to the trauma of surgery, but Willis experienced
excessive swelling to the arms that lasted several days. He “attribute[d] most of that to the
excessive amount of fluid she got through the case.” Her report of pain in the thumb, first
finger, and middle finger indicates that she suffered damage to the median nerve before the
hospital admission on May 25, 2008.
¶ 20 Dr. John Fernandez, an orthopedic surgeon, testified that he examined Willis in 2014 and
found that her median nerve had recovered somewhat, but not completely. In his expert
opinion, he found to a reasonable degree of medical certainty that the surgery on May 21, 2008,
caused the injury. He explained:
“So she comes into the operating room, she doesn’t have any of these
complaints. ***
*** The MRI scan shows that the brachialis muscle is not normal. That doesn’t
just happen on its own. The EMG shows that there’s an injury to the nerve at two
different levels. That’s also not something that would just happen on its own.”
¶ 21 In his opinion, the nerve sustained damage due to “at least two hours of continuous pressure
of at least 200 *** millimeters of mercury” during the surgery. The defense showed the jury
the surveillance video. The court permitted Dr. Fernandez to say that the video did not change
his opinions. However, the court did not permit Willis to present from the video individual
screenshots that, in Dr. Fernandez’s opinion, particularly showed how her movements reflected
her continuing injury.
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¶ 22 Dr. William McElveen, a neurologist, testified that in his opinion, Willis suffered an injury
to her median nerves at both wrists and at the right elbow in the surgery on May 21, 2008. One
would not expect such severe swelling of her arms as a result of the breast surgeries and the
abdominal surgery. He explained that a hematoma, probably caused by compression, led to the
swelling at the elbow. The compressive injury most likely occurred because of “an
immobilized extremity. *** The blood pressure cuff on the arm. Somebody leaning on the arm.
*** [T]he extended position itself.” He rejected the defense theory that the injury arose from
a needle stick during the hospitalization that began May 25, 2008: “[I]f it occurred when
somebody was drawing blood or sticking an IV or whatever and you hit that nerve, that person
is going to tell you about it real quick because they’re going to get a lot of pain and electric
shock going down in that hand.”
¶ 23 Dr. Geoffrey Keyes, a plastic surgeon, testified as an expert that in his opinion the
applicable standard of care required Dr. Flagg to end the surgery after he completed the
abdominal revision, about five hours into the surgery, because Willis had lost a great deal of
blood. The prolonged surgery and excessive blood loss increased the risk of complications,
including pulmonary embolism. Willis also “ended up with a neurologic injury as a result of
prolonged surgery and positioning, most likely.” He found to a reasonable degree of medical
certainty that the nerve injury occurred during the operation. He explained, “she didn’t have
the injuries prior to surgery, the day before surgery. And as she came out of surgery, the most
important area of her body that was of concern and of pain to her were both her arms.” He
added, “I don’t know the specific mechanism, but there had to be pressure applied in one or
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more areas for that type of pain and median nerve injury to have occurred.” He noted, as one
possible contributing factor:
“If her arms swelled after she was positioned and that swelling contributed to a
tighter fit of the straps, then they should’ve been loosened obviously. That might
have alleviated and prevented median nerve damage.”
¶ 24 Dr. Brian McAlary, a physician specializing in anesthesia, testified that Willis suffered a
permanent injury to her median nerve during the surgery on May 21, 2008. One should not
expect such severe swelling of the arms as a result of the procedures Dr. Flagg performed.
¶ 25 In his opinion:
“[T]here were multiple factors that together, in and of themselves, perhaps no
one of them could have caused it or did cause it but the combination of those factors
did. And one of them was diminished oxygen delivery to her nerves in both arms
initially. ***
***
*** [T]he administration of crystalloid was in excess.
***
*** And the relevance of that excessive fluid administration was adding to the
swelling and edema of her extremities, which limited her mobility and gave
additional compression to the nerve.
***
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*** [T]here was inadequate attention to positional concerns including the
failure to properly check her upper extremities and to periodically change the
position of those extremities.”
¶ 26 Willis presented an offer of proof that her experts would testify that the injury to the median
nerve occurred during the surgery on May 21, 2008, and the injury would not have occurred
absent negligence.
¶ 27 Two expert nurse anesthetists testified for the defense that the nurse anesthetists infused an
appropriate amount of fluid throughout the surgery and that one should expect significant
swelling after the operation Willis underwent. The experts found that the nurse anesthetists
fully complied with the standard of care.
¶ 28 Dr. Charles Laurito, an anesthesiologist, testified that in his opinion the injury to the
median nerve did not occur in the operation. He said, “I don’t see the kinds of things I would
expect, had there been damage to a forearm or an arm during an operation. There was no
bruising, no bleeding, no needle stick marks, no compressive injury signs to the right
extremity.” He thought the injury most likely occurred when someone stuck an IV needle into
the median nerve during the hospitalization that started May 25, 2008. On cross-examination,
he admitted that if a needlestick injured the nerve, usually “the patient would have pain
immediately and would have fiery sensation in their fingers.” He added, “It’s not a hundred
percent.”
¶ 29 Another anesthesiologist, Dr. Thomas Cutter, also opined that the injury did not occur
during the surgery. He testified, “[Willis] had fluid overload, but I don’t think there was any
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significant sequela. There was no morbidity. There was no harm done from the additional
fluid.”
¶ 30 Defendants chose not to call two expert witnesses they had identified in discovery to the
witness stand. Willis asked the court to instruct the jurors that they could infer, from the
decision not to call the witnesses, that those witnesses would have given testimony adverse to
the defense. Willis pointed out that in his deposition, Dr. William Davison stated he “didn’t
find any evidence that the blood was drawn in the right antecubital space [by the elbow] or an
IV. That’s why I really think this is probably related to the EMG.” Dr. Davison admitted that
“swelling [can] cause compression of the nerve in a joint,” but in his opinion such compression
could not affect the median nerve. He thought a blood flow problem might have caused the
injury, but that was only one of several possible explanations. Dr. Russell Glantz admitted that
swelling might have compressed the median nerves. The court denied the request for the
missing witness instruction.
¶ 31 In closing argument, defendants emphasized Willis’s inability to prove the mechanism that
caused her injury. Counsel said, “if you go back there and you don’t understand something,
you don’t remember hearing evidence about something, that a question’s out there that hasn’t
been answered, that has to be charged solely and completely against the plaintiff.”
¶ 32 The jury returned a verdict in favor of all defendants. In her posttrial motion, Willis again
raised the issue of res ipsa loquitur. The court denied the motion and entered a judgment on
the jury verdict. Willis now appeals.
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¶ 33 II. ANALYSIS
¶ 34 On appeal, Willis argues that the trial court erred (1) by barring evidence and instructions
on the theory of res ipsa loquitur, (2) by refusing the missing witness instruction, (3) by
permitting Dr. Laurito to testify that a needlestick during the hospitalization that began on May
25, 2008, may have caused the injury, and (4) by limiting the testimony of Willis’s expert
witnesses.
¶ 35 Defendants contend that the two issue rule bars Willis from challenging the ruling
concerning res ipsa loquitur. “[W]hen multiple claims, theories, or defenses were presented to
the jury, without the submission of special interrogatories or separate verdict forms, the return
of a general verdict creates a presumption that the evidence supported at least one of the claims,
theories, or defenses and will be upheld.” Great American Insurance Co. of New York v.
Heneghan Wrecking & Excavating Co., 2015 IL App (1st) 133376, ¶ 15. Willis offered no
special interrogatory. Here, the trial court’s ruling prevented the jury from considering whether
to hold defendants liable under the res ipsa loquitur theory. The general verdict in favor of the
defendants relates only to the claims presented, for allegations of specific negligent acts, and
proves only that the jury found unproven either the specified acts or the alleged specific causal
connections between those acts and Willis’s injuries. We cannot infer from the verdict that the
jurors would not have found the elements of res ipsa loquitur if the court had allowed them to
consider the relevant evidence with applicable instructions. See Great American, 2015 IL App
(1st) 133376, ¶ 16. Because the trial court did not permit Willis to present the res ipsa loquitur
theory to the jury, the two issue rule does not apply. See Great American, 2015 IL App (1st)
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133376, ¶¶ 15-16. Willis adequately preserved her objection to the trial court’s rulings barring
evidence and instructions on the theory of res ipsa loquitur.
¶ 36 “[T]he res ipsa loquitur doctrine is a species of circumstantial evidence.” Heastie v.
Roberts, 226 Ill. 2d 515, 542 (2007). The trial court must decide whether the doctrine applies
as a question of law, subject to de novo review. Heastie, 226 Ill. 2d at 531. “[A] plaintiff
seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured (1) in
an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency
or instrumentality within the defendant’s exclusive control. Heastie, 226 Ill. 2d at 531-32.
“Illinois law does not require a plaintiff to show the actual force which initiated the motion
or set the instrumentality in operation in order to rely on the res ipsa doctrine. To the
contrary, if the specific and actual force which initiated the motion or set the
instrumentality in operation were known unequivocally, leaving no reason for inference
that some other unknown negligent act or force was responsible, the res ipsa doctrine could
not even be invoked.” Heastie, 226 Ill. 2d at 539.
¶ 37 If the plaintiff was unconscious at the time of the injury, and under the defendants’ control,
then the plaintiff has adequately shown the control element for res ipsa loquitur, even if she
cannot establish the exact instrumentality that caused the injury. Spidle v. Steward, 79 Ill. 2d
1, 4, 7-8 (1980). Here, if Willis can convince a finder of fact that the injury occurred during
the surgery, “it can be inferred *** that the instrumentality of the injury was the handling” of
Willis by defendants. See Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill.
App. 3d 812, 820 (2003).
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¶ 38 Willis’s experts explained that the medical records supported their conclusion that the
injury occurred during the surgery on May 21, 2008. Defendants contend that they did not have
exclusive control because their expert said the injury might have occurred during the
hospitalization that began on May 25, 2008. “A plaintiff need not conclusively prove all the
elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence
reasonably showing that elements exist ***.” Dyback v. Weber, 114 Ill. 2d 232, 242 (1986).
Willis presented enough evidence to raise a question for the jury as to whether defendants had
exclusive control over the instrumentality that caused the injury.
¶ 39 Willis’s experts also testified in their depositions that the injury to the median nerve
ordinarily would not occur without negligence. None of defendants’ experts disputed this
conclusion.
¶ 40 The trial court disallowed the evidence on grounds that Willis’s experts testified that they
knew “the specific and actual force” that caused the injuries. See Heastie, 226 Ill. 2d at 539.
While several of Willis’s experts said that compression caused the injury, they noted several
different possible sources for the compression. As Willis’s arms gradually swelled during the
lengthy surgery, the anesthesiologists and nurse anesthetists may have failed to recognize that
the arm straps had tightened and put pressure on the nerve. The anesthesiologists and nurse
anesthetists may have repositioned Willis’s arms negligently when they changed her position
for the abdominal revision. Dr. Flagg may have leaned on Willis’s arms during the surgery.
The excessive fluid administered by all the nurse anesthetists may have aggravated the effect
of other pressures on the nerve. The experts testified that they could not determine from the
medical records which of the possible sources of pressure caused the injuries. Defense counsel
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used the uncertainty in closing argument, telling the jurors that if they had unresolved questions
about the cause of the injury, they must find in favor of defendants.
¶ 41 The appellate court considered the applicability of res ipsa loquitur in similar
circumstances in Kolakowski v. Voris, 83 Ill. 2d 388, 397 (1980), where the court said:
“The defendant *** argues that plaintiff’s introduction of evidence of specific
negligence extinguishes plaintiff’s right to rely on the doctrine of res ipsa loquitur.
The premise for this argument is that if a plaintiff knows in what respects the
defendant was guilty of negligence and presents any specific evidence of the
negligent act, the doctrine of res ipsa loquitur is inapplicable ***. Defendant’s
theory would be accurate if the evidence introduced by plaintiff conclusively
established the exact cause of his injuries. *** Our appellate court has consistently
permitted a plaintiff to introduce evidence of specific negligence without depriving
him of his right to rely on the doctrine of res ipsa loquitur where such specific
evidence does not conclusively establish the cause of the injury.”
¶ 42 Because the experts here could not conclusively establish the cause of Willis’s injury, she
could rely on circumstantial evidence to establish her claim. The trial court erred by precluding
Willis’s experts from testifying that the injury to Willis’s median nerve would not have
occurred absent negligence and by refusing to instruct the jurors on res ipsa loquitur.
¶ 43 The dissent claims that the opinions of Willis’s experts, who found to a reasonable degree
of medical certainty that the injury occurred during the surgery and it would not have occurred
absent negligence, do not suffice to create a question for the jury as to whether Willis proved
by a preponderance of the evidence that the injury occurred during the surgery and it would
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not have occurred absent negligence. The dissent finds that Dr. Laurito’s opinion that the injury
might not have occurred during surgery establishes unequivocally that the injury might have
occurred at some other time. The dissent would find that this court and the trial court must treat
Dr. Laurito’s opinion as controlling on the possible causes of the injury, despite the contrary
opinions of Willis’s well-qualified experts. No case or statute supports the dissent’s contention.
¶ 44 The dissent cites Loizzo v. St. Francis Hospital, 121 Ill. App. 3d 172 (1984), where the
plaintiff claimed that one of the defendants must have inserted the catheter found in his body
during preparation for surgery. The defendants pointed out that paramedics not named as
defendants also inserted a catheter into plaintiff’s body. The defendants also alleged the
catheter that the paramedics inserted may have been the catheter later found in plaintiff.
According to the appellate court, “Plaintiff proffered no evidence contrary to the contentions
of the various defendants.” Loizzo, 121 Ill. App. 3d at 175. In Raleigh v. Alcon Laboratories,
Inc., 403 Ill. App. 3d 863, 867 (2010), also cited by the dissent, the plaintiff’s own expert
admitted that possible occurrences not under the defendants’ control might have caused the
injury.
¶ 45 The evidence here contrasts starkly with the evidence in Loizzo and Raleigh. Willis’s
experts explained how the medical records supported their conclusion that the injury must have
occurred during the surgery on May 21, 2008, when the defendants had complete control over
Willis. Dr. McElveen particularly explained his rejection of Dr. Laurito’s suggested alternative
cause: a needle stick directly into a nerve will cause the patient to cry out in pain.
¶ 46 The dissent effectively finds that the trial court did not err by barring the evidence of res
ipsa loquitur because the jury had no right to believe any of Willis’s experts and must believe
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Dr. Laurito’s testimony about a cause he believed possible. Courts should allow juries to assess
the credibility of expert witnesses. See Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163,
167 (2003). The dissent claims that the jury found Willis’s experts not credible. But the jury
never heard their opinion that the injury would not have occurred absent negligence, and, most
importantly, the jury never considered the question of whether Willis adequately proved that
the injury occurred during the surgery and it would not have occurred absent negligence.
Instead, the jury verdict supports the inference that the jury found that Willis failed to prove
any specific mechanism for the compression of Willis’s nerve. The dissent has not suggested
any proper basis for taking from the jury the assessment of the credibility of the expert
witnesses who would have testified to a reasonable degree of medical certainty that Willis’s
injuries occurred during surgery on May 21, 2008, and the injury would not have occurred
without negligence. Under the reasoning of Dyback, 114 Ill. 2d at 242, the evidence in Willis’s
offers of proof sufficed to present to the jury the issue of whether Willis proved the elements
of res ipsa loquitur.
¶ 47 The dissent finds Dr. Laurito’s opinion especially credible in part because Willis’s
complaints about pain in her right wrist first appear in the medical record of the second
hospitalization. But in that initial record the nurse noted “doctors were aware of this complaint”
despite the lack of any prior note regarding the specific problem. The medical record itself
supports the conclusion that caregivers failed to chart some of Willis’s complaints about her
arm pain.
¶ 48 Moreover, the dissent’s reliance on the accuracy of the medical record conflicts with its
conclusion that a needlestick during the second hospitalization might have caused the nerve
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injury. As defendants’ expert, Dr. Davison, explained, the medical record of the second
hospitalization does not show any insertion of a needle into the antecubital area where the
nerve compression occurred.
¶ 49 Of course, the record from the second hospitalization may fail to reflect all actual treatment,
and a caregiver may have failed to record an errant needlestick in the antecubital area. The
postsurgical record showing Willis’s pain as 4 out of 10 at 12:15 a.m., 1:15 a.m., 2:15 a.m.,
3:15 a.m., and 4:15 a.m. may not result from nurses cruelly waking Willis every hour as she
recovered from a very difficult surgery to ask how much pain she felt. It may result from
inaccurate charting. The failure to record specific complaints related to Willis’s right wrist may
result from a failure to chart the complaint and not from Willis’s failure to complain. The
medical records do not show that all of Willis’s experts gave unsupportable opinions when
they concluded that the injury occurred during the surgery and it would not have occurred
absent negligence. The trial court erred when it disallowed this testimony and when it failed to
instruct the jury on the issue of res ipsa loquitur.
¶ 50 Finally, the dissent asserts: “Post-surgery, Willis informed her primary care physician that
she had been diagnosed with carpal tunnel syndrome, but it had not been confirmed.” The
dissent apparently adopted this assertion from the defendants’ brief on appeal. The defendants
cite in support only four questions in the record, where defense counsel assumed that the
medical records included a note written by Dr. Navneet Singh stating that Willis told him about
such a diagnosis. Dr. Singh did not testify, and his alleged note does not appear in the record
on appeal. No witness confirmed that the medical record included the alleged note. We find
that the dissent’s assertion makes little difference legally: even if Willis had some preexisting
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damage to her carpal tunnel, defendants would remain liable for aggravation of the preexisting
condition. See Balestri v. Terminal Freight Cooperative Ass’n, 76 Ill. 2d 451, 455 (1979). The
dissent’s unsupported assertion shows a disturbing willingness to approve trial not by evidence
but by insinuation. See Clarquist v. Kirschenman, 55 Ill. App. 3d 76, 80 (1977).
¶ 51 Willis separately argues that defendants improperly brought as an evidentiary motion
in limine that effectively sought summary judgment on the first count of her complaint. Our
supreme court said, “[a]lthough ordinarily only ultimate facts, and not conclusions or
inferences, are to be pleaded, we are of the opinion that in the pleading of a cause of action in
medical malpractice cases under the doctrine of res ipsa loquitur, reliance on the doctrine
should be alleged.” Walker v. Rumer, 72 Ill. 2d 495, 502 (1978). In accord with Walker,
“[b]ecause Illinois requires fact pleading [citation], res ipsa loquitur is often pleaded as a
separate claim.” Darrough v. Glendale Heights Community Hospital, 234 Ill. App. 3d 1055,
1060 (1992).
¶ 52 Our discussion of the evidence bearing on whether the court should have permitted the jury
to decide the res ipsa loquitur claim here involved extensive analysis of the evidence in a
manner closely akin to the resolution of a summary judgment motion. By raising the issue as
one of more than 100 motions in limine, presented less than two days before trial, when the
trial judge candidly admitted that she had not read through all of the thousands of pages of
depositions, defendants ensured inadequate consideration of the issues involved. See
Silverstein v. Brander, 317 Ill. App. 3d 1000, 1005-06 (2000); Peterson v. Randhava, 313 Ill.
App. 3d 1, 11-12 (2000). Defendants cite no case in which the trial court decided on a motion
in limine whether the plaintiff stated a claim under the theory of res ipsa loquitur.
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¶ 53 We need not address the other issues Willis raises, as those issues should not resurface on
retrial. Willis’s attorneys now know that defendants intend to rely on their theory that an IV
needle stuck directly into Willis’s median nerve caused no immediate pain but caused the
severe nerve injury shown by the EMG in June 2008. If defendants intend to advance any other
theory to explain the median nerve injury, they must appropriately notify Willis’s attorneys
and permit further discovery. Defense attorneys now know that Willis’s experts intend to use
stills taken from the surveillance video to explain how her movements show that she still
suffers from the nerve damage. We reverse the judgment of the trial court and remand for a
new trial.
¶ 54 III. CONCLUSION
¶ 55 Willis presented sufficient evidence to raise a triable issue as to whether the injury to
Willis’s median nerve occurred during surgery on May 21, 2008, and whether the injury would
have occurred in the absence of negligence. Accordingly, we reverse the trial court’s judgment
and remand for proceedings in accord with this order.
¶ 56 Reversed and remanded.
¶ 57 JUSTICE HYMAN, dissenting:
¶ 58 I respectfully dissent. Under the doctrine of res ipsa loquitur, the mere existence of the
plaintiff’s injury creates a presumption of culpability. According to the majority’s conclusion,
“Willis presented sufficient evidence to raise a triable issue” on (i) whether the injury occurred
during the May 21 surgery and (ii) whether the injury would have occurred in the absence of
negligence. Supra ¶ 55. I do not deny a “triable issue” but applying res ipsa loquitur. On these
facts, the trial court properly granted the motion to bar the use of res ipsa loquitur because the
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No. 1-18-0718
evidence established different agents, some not defendants at trial, could have caused Willis’s
injuries at different times. I would affirm.
¶ 59 Res Ipsa Loquitur
¶ 60 Section 2-1113 of the Code of Civil Procedure provides:
“In all cases of alleged medical or dental malpractice, where the plaintiff relies
upon the doctrine of res ipsa loquitur, the court shall determine whether that
doctrine applies. In making that determination, the court shall rely upon either the
common knowledge of laymen, if it determines that to be adequate, or upon expert
medical testimony, that the medical result complained of would not have ordinarily
occurred in the absence of negligence on the part of the defendant. Proof of an
unusual, unexpected or untoward medical result which ordinarily does not occur in
the absence of negligence will suffice in the application of the doctrine.” 735 ILCS
5/2-1113 (West 2012).
¶ 61 An evidentiary doctrine, res ipsa loquitur affects the proof from which the trier of fact may
draw an inference of negligence on the part of the defendant, but it does not affect the necessity
or method of proving proximate cause. Darrough v. Glendale Heights Community Hospital,
234 Ill. App. 3d 1055, 1059 (1992).
¶ 62 This doctrine requires proof the plaintiff was injured (i) in an occurrence that ordinarily
does not happen in the absence of negligence (ii) by an agency or instrumentality within the
defendant’s exclusive control. Heastie v. Roberts, 226 Ill. 2d 515, 531-32 (2007). A
defendant’s responsibility for a specific cause of an event arises through eliminating the
responsibility of any other person. Nichols v. City of Chicago Heights, 2015 IL App (1st)
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122994, ¶ 46 (citing Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 273 (1982)). In
addition, the plaintiff must show (i) the injury was not a result of plaintiff’s own negligent acts
(Heastie, 226 Ill. 2d at 539) and (ii) the injury can either be traced to a specific cause for which
the defendant is responsible or that the defendant was responsible for all reasonable causes to
which the accident could be attributed. Napoli v. Hinsdale Hospital, 213 Ill. App. 3d 382, 388
(1991) (citing Prosser & Keeton on the Law of Torts, § 39, at 248 (W. Page Keeton et al. eds.,
5th ed. 1984)). “Furthermore, where res ipsa loquitur is to be applied, all parties who could
have caused the plaintiff’s injuries are joined as defendants.” Nichols, 2015 IL App (1st)
122994, ¶ 46 (citing Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 257 (1990)).
¶ 63 Whether the doctrine applies in a medical malpractice case presents a question of law
reviewed de novo. Heastie, 226 Ill. 2d at 531; 735 ILCS 5/2-1113 (West 2004). “Our sole
inquiry is whether the allegations in plaintiff’s complaint were sufficient to state a cause of
action for negligence based on the res ipsa loquitur doctrine.” Heastie, 226 Ill. 2d at 542.
¶ 64 Res ipsa loquitur permits an inference of negligence from otherwise inexplicable facts.
Drewick v. Interstate Terminals, Inc., 42 Ill. 2d 345, 351 (1969). It is “simply a rule of evidence
relating to the sufficiency of plaintiff’s proof.” (Internal quotation marks omitted.) Darrough,
234 Ill. App. 3d at 1060; see Lynch, 93 Ill. 2d at 274; Wilson v. Michel, 224 Ill. App. 3d 380,
386 (1991) (res ipsa loquitur “is not a separate legal theory but rather is a type of circumstantial
evidence which permits the trier of fact to infer negligence when the precise cause of the injury
is not known by the plaintiff”); Kruger v. Newkirk, 40 Ill. App. 3d 581, 585 (1976) (res ipsa
loquitur similar in effect to circumstantial evidence because “an inference of negligence
arise[s] from circumstantial evidence” (internal quotation marks omitted)).
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¶ 65 In deciding whether the medical injury would have occurred absent defendant’s
negligence, the reviewing court may rely on expert medical testimony and common
knowledge. See Wilson, 244 Ill. App. 3d at 386. Defendant’s control serves as a prerequisite
to finding liability. Drewick, 42 Ill. 2d at 351. As the majority notes, an unconscious plaintiff
under the defendants’ control has adequately shown the control element. Supra ¶ 37; see
Kolakowski v. Voris, 83 Ill. 2d 388, 396 (1980) (“[W]hen a patient submits himself [or herself]
to the care of a hospital and its staff and is rendered unconscious for the purpose of surgery
performed by independent contracting surgeons, the control necessary under res ipsa loquitur
will have been met.”). But our inquiry does not stop there.
¶ 66 Exclusive Control and Causation
¶ 67 The doctrine of res ipsa loquitur does not apply when (i) possible alternative causes exist
and the plaintiff is unable to establish that the defendant’s actions specifically caused the
injury, (ii) an injury could have a non-negligent cause, or (iii) the plaintiff failed to name all
persons or entities who might have caused the injuries. Raleigh v. Alcon Laboratories, Inc.,
403 Ill. App. 3d 863, 869-870 (2010).
¶ 68 Willis argues that she sustained a median nerve injury in her right elbow as the result of
negligence during her first surgery. Willis failed to prove this element. Willis’s complaint
omits any person or entity who treated her post-surgery. Count III of the “Second-Amended
Complaint” included the following: “10. After Plaintiff Alma Willis’ May 22, 2008, discharge
from Defendant St. James Hospital, Defendant Flagg next saw Plaintiff Alma Willis during
her re-admission at Defendant St. James Hospital from May 25, 2008 through June 2, 2008.”
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An identical assertion was in Count XVII alleging medical negligence against the entity
WHICHDR. Enterprises, Ltd.
¶ 69 Willis failed to properly allege the “exclusive control” element that triggers applying res
ipsa loquitur as an evidentiary tool for inferring negligence. The injury still could reasonably
have been caused by a non-defendant. Raleigh, 403 Ill. App. 3d at 869 (citing Loizzo v. St.
Francis Hospital, 121 Ill. App. 3d 172, 178 (1984)). Indeed, the evidence suggests that the
injury to Willis’s right elbow could have occurred during her second hospital admission on
May 25. During this visit, an emergency room nurse twice attempted to place an IV into her
right elbow crease. The median nerve runs close to where an IV would be inserted, and
according to both Willis’s and defendants’ experts, a needle stick presents the most common
way to injure that nerve. So a failed attempt at inserting an IV could have injured the median
nerve.
¶ 70 All parties’ experts agree that Willis’s first recorded complaints about pain to her right side
occurred during her second hospital visit, a few hours after the nurse reinserted the IV. Dr.
McElveen testified that an injury to a blood vessel can cause a hematoma that could compress
the nerve, which is even more likely for patients on blood thinners, as had been prescribed to
Willis.
¶ 71 This case resembles Loizzo, 121 Ill. App. 3d at 173. There, a catheter was left in the plaintiff
after surgery. The plaintiff attempted to use res ipsa loquitur but did not know by whom or
where the catheter had been inserted. Id. The defendants argued that nonnamed parties could
be responsible. Id. at 179. The court rejected res ipsa loquitur because a nondefendant treater
could have inserted the catheter. Id. at 179-80. Negligence alone is not enough; plaintiff still
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had “to bring it home to the defendant.” (Internal quotation marks omitted.) Id. at 179; see
Raleigh, 403 Ill. App. 3d 863 (summary judgment proper where plaintiff failed to prove
“exclusive control” element by not naming all potential entities that may have reasonably
caused injuries); Napoli, 213 Ill. App. 3d at 390 (res ipsa loquitur inapplicable where
possibility that injury occurred at different time).
¶ 72 Similarly, this court found the doctrine of res ipsa loquitur inapplicable in Garland v.
Sybaris Clubs International, Inc., 2019 IL App (1st) 180682, ¶ 117, because the evidence was
insufficient to prove the specific cause of the airplane crash to have been an act or omission
resulting from the pilot’s incompetence or inexperience and, therefore, within the defendants’
exclusive control. The plaintiff presented no proof that the defendants exclusively controlled
“the immediate cause of the injury.”
¶ 73 Likewise, in Crowley v. A-North Shore Driving School, 19 Ill. App. 3d 1035, 1036-38
(1974), the plaintiff was a driver’s license examiner who sued a driving school for injuries
suffered in an accident caused by a student. This court held that for res ipsa loquitur to apply,
“it is necessary to prove the defendant’s control of the immediate cause of the injury is
exclusive; the doctrine cannot be invoked without evidence tending to establish that the injury
complained of was caused by someone under defendant’s control.” Id. at 1038.
¶ 74 In these cases, as here, others than the defendant could have caused the injury. The trial
court recognized this possibility that the injury could have occurred during Willis’s second
hospital visit.
¶ 75 For the same reasons, the trial court correctly barred res ipsa loquitur regarding Willis’
bilateral wrist symptoms. As in her elbow post-surgery, there were no signs of wrist injury.
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Willis testified that she had no wrist pain. In addition, evidence suggests her wrist symptoms
could have been due to preexisting carpal tunnel syndrome.
¶ 76 Post-surgery, Willis informed her primary care physician that she had been diagnosed with
carpal tunnel syndrome, but it had not been confirmed. This diagnosis dovetailed with her
previous job involving typing, a repetitive motion, which can lead to carpal tunnel syndrome.
Two of plaintiff’s expert witnesses, Drs. McAlary and McElveen, along with her treating
neurologist and occupational therapist, agreed that carpal tunnel can occur from repetitive
motion. Another expert witnesses, Dr. Fernandez, opined that bilateral carpal tunnel syndrome
appeared at the wrists, after having performed a physical exam and viewed an MRI report. Due
to the presence of evidence that Willis’s wrist condition could be the result of preexisting carpal
tunnel syndrome, the trial court correctly rejected the res ipsa loquitur doctrine. See Rahic v.
Satellite Air-Land Motor Service, Inc., 2014 IL App (1st) 132899 (conjecture alone does not
suffice where no evidence indicates defendants’ negligence as most plausible explanation for
injury); Dyback v. Weber, 114 Ill. 2d 232 (1986) (same).
¶ 77 The record illustrates how unhampered Willis was at trial. Willis’s witnesses testified about
the events before, during, and after surgery, and her experts opined based on the medical
records. Willis produced her own experts who opined that somehow compression during the
surgery could have injured her—either by someone leaning on Willis’s arm, improper
positioning of her arm on the operating table, or by dropping an instrument on her arm. It is
axiomatic that the jury as the trier of fact has the duty to resolve conflicting expert testimony.
Hallowell v. University of Chicago Hospital, 334 Ill. App. 3d 206, 212-13 (2002). This court
does not reweigh witness credibility or substitute our judgment for that of the jury. Bergman
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v. Kelsey, 375 Ill. App. 3d 612, 622-23 (2007). This jury reached its verdict after hearing all
the evidence. Willis was not deprived of her day in court. Had the jury been instructed on res
ipsa loquitur, the jury would have had even more justification for finding for the defendants
because under the doctrine, the second event, her hospitalization days after the surgery, would
eliminate the inference of the defendants’ negligence during the first event, the surgery.
¶ 78 The majority states: “[t]he dissent effectively finds that the trial court did not err by barring
the evidence of res ipsa loquitur because the jury had no right to believe any of Willis’s experts
and must believe Dr. Laurito’s testimony about a cause he believed possible.” Supra ¶ 46. This
misrepresents the core of my position—as a rule of evidence, the doctrine of res ipsa loquitur
does not apply under these facts. The jury was the finder of fact, heard all the evidence, and
rejected Willis’s theory of her case. The jury assessed the credibility of the expert witnesses
presented by both sides, and I agree with the majority that “[c]ourts should allow juries to
assess the credibility of expert witnesses. See Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d
163, 167 (2003).” Supra ¶ 46.
¶ 79 In sum, the circumstances under which the doctrine applies are absent. See Dyback, 114
Ill. 2d at 242 (“When res ipsa loquitur is invoked the plaintiff bears the burden of proving all
of its elements. Under the doctrine, the facts of the occurrence show prima facie the
defendant’s negligence if the plaintiff establishes (1) that the occurrence is one that ordinarily
does not occur in the absence of negligence and (2) that the defendant had exclusive control of
the instrumentality that caused the injury.”). Dyback requires two elements, and Willis failed
to allege and prove the second, i.e., exclusive control of a cause of her injury.
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¶ 80 Motion in Limine
¶ 81 Willis argues that defendants’ motion in limine to bar res ipsa loquitur amounted to a
dispositive motion for summary judgment on the first count (supra ¶ 51) and circumvented
local rule 2.1 (Cook County Cir. Ct. R. 2.1 (Aug. 21, 2000). The majority admonishes the
defendants, stating that by “raising the issue as one of more than 100 motions in limine,
presented less than two days before trial, when the trial judge candidly admitted that she had
not read through all of the thousands of pages of depositions, defendants ensured inadequate
consideration of the issues involved.” Supra, ¶ 52.
¶ 82 The record reveals 61 open motions on the day the trial court ruled. Seventeen were agreed
motions, and two were withdrawn. Arguments by opposing counsel, both for and against the
motion to bar the use of the res ipsa loquitur doctrine, cover 10 pages of transcript. The
attorneys discussed the depositions at length. The trial court cited Imig v. Beck, 115 Ill. 2d 18(1986), and ruled
“based on the facts of this case and based on my reading of other cases on res ipsa and
even the [committee] comments on the jury instructions, I don’t think this case is a res
ipsa. *** It’s almost like you’re asking the jury to believe, okay the arms were
improperly positioned during surgery, external pressure was placed on her arm during
the surgery, the surgery took long [sic]. So it’s almost like one, two, and three; but if
you don’t believe those, then it’s a res ipsa.”
The trial court found this attempted use of the doctrine to be improper and granted the motion.
¶ 83 Local rule 2.1 states:
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“All motions for summary judgment shall be filed and duly noticed for hearing such
that the motion comes before the court for initial presentation and entry of a briefing
schedule not later than forty-five (45) days before the trial date, except by prior leave
of court and for good cause shown or unless a deadline for dispositive motions is
otherwise specified in the case management order.” Cook County Cir. Ct. R. 2.1(f)
(Aug. 21, 2000).
Local rule 2.1 further requires 3 days’ notice before presenting the motion and provides an
adverse party 28 days to file a responsive memorandum. Cook County Cir. Ct. R. 2.1(d) (Aug.
21, 2000). Willis asserts the trial court “disposed of an entire claim under plaintiff’s complaint
on the second day of trial, prior to any evidence being presented to the jury and one day after
being assigned the case.” Willis claims she was denied her Rule 2.1 protections because the
defendants brought their motion for summary judgment as a motion in limine. But the trial
court may excuse compliance with its own rules for “good cause.” Bright v. Dicke, 166 Ill. 2d
204, 208-09 (1995). Moreover, the suggestion the in limine motion serves as a disguise for a
summary judgment motion advances a specious argument.
¶ 84 Res ipsa loquitur does not constitute a cause of action, even though some courts have so
referred to it. Darrough, 234 Ill. App. 3d at 1060. “Because Illinois requires fact pleading
[citation], res ipsa loquitur is often pleaded as a separate claim [citation] and, therefore, has
sometimes been referred to as a cause of action [citation]. Id.
¶ 85 As I have stated, res ipsa loquitur “permits the drawing of an inference as in any other case
of circumstantial evidence.” Imig, 115 Ill. 2d at 30. This permissible inference does not create
a presumption of negligence; rather, the trier of fact weighs the strength of the inference of
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negligence. Id. at 27. “Moreover, the res ipsa loquitur doctrine applies only when the facts
proved by the plaintiff admit of the single inference that the accident would not have happened
unless the defendant had been negligent.” Britton v. University of Chicago Hospitals, 382 Ill.
App. 3d 1009, 1012 (2008).
¶ 86 Even if the motion in limine could be characterized as a motion for summary judgment,
this court’s reasoning in Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999), guides
us. In Seef, the trial court granted defendant’s motion in limine to bar the testimony of
plaintiff’s expert, finding the testimony was speculative and inadequate to establish proximate
causation. Id. at 11-12. The next day the trial court granted the defendant’s motion for dismissal
based on the ruling on the motion in limine. Id. at 12. On appeal, the plaintiff argued that the
motion to dismiss was actually an untimely motion for summary judgment. Id. at 17. We noted
that regardless, no genuine issue of material fact remained—the plaintiff had no expert
testimony regarding the alleged deviation from the standard of care. Id. at 18-19. According to
Seef:
“Assuming arguendo that the motion to dismiss was actually a motion for summary
judgment, the trial court could properly consider it. Pursuant to Rule 2.1(f) of the rules
of the circuit court of Cook County, a motion for summary judgment must be filed at
least 45 days before the trial date ‘except by prior leave of court and for good cause
shown.’ Cook Co. Cir. Ct. R. 2.1(f) (eff. April 23, 1992).” Id. at 18.
The trial court in Seef indicated it would give leave to file a motion for good cause shown.
Even if the dismissal violated a local circuit court rule, “that fact is not ground for reversal
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No. 1-18-0718
where, as here, no injustice has been done to anyone.” (Internal quotation marks omitted.) Id.
The opposite is true here—both sides presented multiple experts at trial.
¶ 87 The underlying principle remains: our reversing the trial court’s ruling would not salvage
the Willis’s claims. In Seef, the court stated if it accepted the plaintiffs’ argument that the
motion to dismiss was an untimely motion for summary judgment and reversed the trial court,
the plaintiffs “would ultimately find themselves in the same position they are in now.” Id. at
20. Without expert testimony proving causation, the trial court would have directed a verdict
for the hospital “after having had to waste both its and the parties’ time, money and energy on
an unnecessary proceeding. ‘[T]he law does not require the doing of a useless act.’ ” Id.
(quoting Stone v. La Salle National Bank, 118 Ill. App. 3d 39, 45 (1983)).
¶ 88 In contrast, this court in Okic v. Fullerton Surgery Center, Ltd., 2019 IL App (1st) 181074,
recognized that the defendants’ motions in limine to bar any evidence of the surgeon’s
negligence were not evidentiary rulings but rulings that disposed of an entire theory of liability,
namely, that the surgeon negligently performed the surgery or negligently caused the plaintiff’s
injury or both Id. ¶ 78. With no expert evidence as to a surgical standard of care, lay jurors
could not evaluate the surgeon’s conduct.
¶ 89 But the error in Okic was harmless because, as in Seef, the plaintiff would have been in the
same position at the close of the evidence. Id. ¶¶ 82, 85. Willis could not meet the elements of
the res ipsa loquitur doctrine because during her subsequent hospitalization these defendants
did not have exclusive control over all reasonable causes of her injury. The jury did not require
inferences to form their opinions of the cause of her injury; the evidence was extensive both as
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to what occurred and as to experts’ opinions of how her injury occurred. The existence of cause
in fact presents a question of fact for the jury. Young v. Bryco Arms, 213 Ill. 2d 433, 447 (2004).
¶ 90 The majority states that “[d]efendants cite no case in which the trial court decided on a
motion in limine whether the plaintiff stated a claim under the theory of res ipsa loquitur,”
citing Silverstein v. Brander, 317 Ill. App. 3d 1000, 1005-06 (2000), and Peterson v.
Randhava, 313 Ill. App. 3d 1, 11-12 (2000). Supra ¶ 52. Neither case gives guidance here.
¶ 91 In Peterson, the trial court sua sponte converted a motion for sanctions into a motion for
summary judgment while discovery had been stayed and before any depositions. Peterson, 313
Ill. App. 3d at 12. This “deprive[d] the plaintiff of an opportunity to conduct discovery on the
relevant issues, present evidence and argue against dismissal.” Id. Here, when the defendants
moved to bar res ipsa loquitur, Willis had conducted her discovery, the parties had completed
experts’ reports and depositions, and, before ruling on the motion, the court gave both parties
the opportunity to raise objections and provide case law to support their arguments. Willis did
not suffer any prejudice as did the plaintiff in Peterson.
¶ 92 In Silverstein, defense counsel presented the motion as in limine rather than as a motion for
summary judgment for “strategic reasons,” apparently designed to avoid the notice
requirements for summary judgment motions. Silverstein, 317 Ill. App. 3d at 1004. This court
reversed, finding that mistitling a motion to avoid local notice requirements does not constitute
“good cause” to excuse complying with court rules. Id. at 1006. Again, even were this a motion
for summary judgment, nothing here even hints at such a strategy.
¶ 93 The exclusion of res ipsa loquitur from the jury’s consideration did not dispose of Willis’s
entire theory of liability. As demonstrated by the majority’s review of the facts, Willis
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presented her evidence to the jury, but there was a plausible, alternative explanation for her
injuries.
¶ 94 I would affirm the trial court’s decision to grant the motion to bar the res ipsa loquitur
claim and allow the jury’s decision to stand.
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No. 1-18-0718
No. 1-18-0718
Cite as: Willis v. Morales, 2020 IL App (1st) 180718Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-L-6049;
the Hon. Kay Marie Hanlon, Judge, presiding.
Attorneys Patricia E. Raymond, Clark M. Raymond, Robert L. Raymond,
for and Kiley R. Burlas, of Raymond & Raymond, Ltd., of
Appellant: Schaumburg, for appellant.
Attorneys Stephen A. Rehfeldt, of Mulherin, Rehfeldt & Varchetto, P.C., of
for Wheaton, for appellees Mauricio Morales, Ching-Chong
Appellee: Huang, Paul Kowalczyk, and Kim Price.
James J. Stamos and Julie N. Howie, of Stamos & Trucco LLP,
of Chicago, for appellees Jeffrey Flagg and WhichDr Enterprises,
Ltd.
David C. Burtker and Peter J. Strauss, of Cunningham, Meyer, &
Vedrine, P.C., of Chicago, for appellee David McCormick.
No brief filed for other appellee.
34