Babikian v. Mruz
2011 IL App (1st) 102579
Ill. App. Ct.2011Background
- Plaintiff Babikian received surgical treatment by Dr. Mruz in February 2000 for suspected endometriosis; a transverse colon perforation occurred requiring immediate repair.
- Postoperative course included colostomy, reversal surgery, ileus, multiple incisions, hernias, and prolonged hospitalizations with permanent abdominal pain and psychiatric treatment.
- Prior to suit, Babikian and Aleco signed a covenant not to sue with Alexian Brothers for $70,000, unallocated among claims.
- Babikian and Aleco sued Mruz for medical negligence; Aleco’s loss-of-consortium claim was later dismissed.
- During discovery, Mruz disclosed as a Rule 213(f)(2) controlled expert; Babikian disclosed the covenant and settlement payment.
- Trial: Mruz testified as adverse witness, acknowledged no board certification and incomplete board process; no contemporaneous objection raised; jury awarded $500,500.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of board certification evidence | Babikian argues Mruz’s lack of board certification was improperly admitted. | Mruz contends any error was forfeited or harmless since unobjected and not explicitly elicited. | Forfeited; no reversible error even if preserved. |
| Jury instructions on damages for emotional distress | Damages for emotional distress were proper in a medical-negligence case. | Separation of pain/suffering and emotional distress could mislead jury or create double recovery. | Proper; no abuse of discretion; no double-recovery evidenced. |
| Setoff for prior settlement with Alexian Brothers | Setoff should reduce plaintiff’s verdict by the allocated amount. | Setoff should apply; prior settlement should reduce recovery. | Trial court should grant setoff; $70,000 setoff against verdict. |
Key Cases Cited
- Thornton v. Garcini, 237 Ill. 2d 100 (2009) (preservation of evidentiary rulings requires objection at trial)
- Simmons v. Garces, 198 Ill. 2d 541 (2002) (forfeiture for failure to object at trial)
- Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523 (2004) (forfeiture for improper comments during closing argument)
- Rockwood v. Singh, 258 Ill. App. 3d 555 (1993) (admissibility of age and certification-showing evidence for expert)
- McCray v. Shams, 224 Ill. App. 3d 999 (1992) (proper admissibility of board-certification-related evidence)
- Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357 (1994) (setoff for prior settlement when allocation not provided)
- Pasquale v. Speed Products Engineering, 166 Ill. 2d 337 (1995) (allocation burden for unallocated settlements)
- Betts v. Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882 (1992) (allocation and apportionment of settlement proceeds)
- Kipnis v. Meltzer, 253 Ill. App. 3d 67 (1993) (nonparty settlement considerations in setoffs)
- Johnson v. Belleville Radiologists, Ltd., 221 Ill. App. 3d 100 (1991) (prior settlements not allocated; setoff burdens)
- Houser v. Witt, 111 Ill. App. 3d 123 (1982) (earlier authority on setoff principles)
- Patton v. Carbondale Clinic, S.C. (repetition for clarity), 161 Ill. 2d 357 (1994) (setoff allocation framework)
- Cummings v. Jha, 394 Ill. App. 3d 439 (2009) (emotional-distress damages in medical negligence cases)