Cimino v. Sublette
31 N.E.3d 846
Ill. App. Ct.2015Background
- Concetta Cimino (83) was hospitalized in January 2009 for vomiting, abdominal distention and an elevated WBC; imaging showed diverticulosis and possible partial obstruction or mass.
- Gastroenterologist Dr. Gerard Sublette performed a colonoscopy on January 12, 2009; during the procedure the patient vomited, was emergently intubated, taken to surgery, and died two days later of sepsis from a perforated colon.
- Plaintiff (Salvatore, special administrator) sued for medical malpractice and wrongful death, alleging Dr. Sublette performed the colonoscopy during an acute diverticulitis attack in violation of the standard of care, causing death.
- At trial the jury returned a verdict in favor of plaintiff (liability) but awarded $0.00 in damages on the verdict form; medical and funeral expenses ($20,853.35 and $10,500) had been read into evidence without objection.
- Trial court granted plaintiff’s motion and vacated the judgment, ordering a new trial on all issues; defendant appealed, arguing a zero damages award can be consistent with liability and the liability finding should stand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by vacating a jury verdict that found liability but awarded zero damages | Cimino: zero damages inconsistent with undisputed stipulation of medical and funeral expenses; verdict is against manifest weight and requires a new trial (at least on damages) | Sublette: a verdict finding negligence but awarding zero damages can be consistent (jury may have found no proximate cause or no damages); court should reinstate liability finding with $0 damages | Court: affirmed. Zero award for stipulated estate expenses was against manifest weight; trial court did not abuse discretion to order a new trial on all issues |
| Whether a new trial should be limited to damages | Cimino: liability is supported by evidence and separable from damages, so retrial should be limited to damages | Sublette: if retrial ordered, it should include liability; also contended zero award was legally consistent | Court: retrial on all issues appropriate because record cannot reveal jury intent, raising risk of compromise or misunderstanding of instructions |
Key Cases Cited
- Kleiss v. Cassida, 297 Ill. App. 3d 165 (1998) (upheld denial of new trial where jury verdict in negligence case awarding zero damages was consistent with jury having found no proximate cause or no damage)
- Tindell v. McCurley, 272 Ill. App. 3d 826 (1995) (remanded for new trial on all issues where jury found liability but awarded zero damages despite uncontradicted proof of some damages)
- Theofanis v. Sarrafi, 339 Ill. App. 3d 460 (2003) (found jury verdict internally inconsistent and remanded for new trial on all issues where liability was found but $0 damages awarded)
- Flynn v. Vancil, 41 Ill. 2d 236 (1968) (recognizes jury may find negligence yet award zero pecuniary damages when evidence shows no recoverable loss)
- Poliszczuk v. Winkler, 387 Ill. App. 3d 474 (2008) (trial court may order new trial where damages are manifestly inadequate or proven elements ignored)
- Snover v. McGraw, 172 Ill. 2d 438 (1996) (discusses standards for awarding new trials on manifestly inadequate damages)