Konewko v. Advocate Health & Hospitals Corp.
180 N.E.3d 179
Ill. App. Ct.2020Background
- On October 28–31, 2010, plaintiff Michael Konewko underwent lumbar surgery and, while an inpatient on October 30, had a painful uncontrolled descent onto a commode during nurse Lisa Begler’s assistance; a revision surgery followed the next day.
- Konewko sued Advocate Good Samaritan Hospital for medical malpractice, alleging Begler (an agent of Advocate) failed to use an assistive device, obtain a second person, or provide adequate instruction/cueing, causing the descent and need for revision surgery.
- Advocate defended that Begler met the standard of care (performed a minimal assist, used a walker, assessed the patient) and that the nerve injury was more likely caused by the initial surgery or infection.
- After a nine-day trial the jury returned a defense verdict and answered a special interrogatory finding Advocate’s nursing/therapy staff not negligent.
- Konewko moved for a new trial (improper and inflammatory closing argument by Advocate) and alternatively for JNOV or a new trial as against the manifest weight of the evidence; the trial court denied relief.
- The appellate court reversed and remanded for a new trial, holding Advocate’s repeated closing remarks appealing to sympathy and referencing Begler’s reputation/finances (in violation of motions in limine) were prejudicial in a closely balanced case and the trial court abused its discretion by treating agent-directed comments as harmless because Begler was a nonparty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Advocate's closing argument warranted a new trial | Closing repeatedly appealed to sympathy for nurse Begler, implied she would personally suffer/ be responsible for a large money award, and urged the jury to put itself in her shoes—violating the court’s in limine orders and prejudicing the jury in a close case | Remarks referred to a nonparty (Begler), objections were sustained and comments stricken, and the evidence sufficiently supported the defense verdict | Reversed and remanded for a new trial. Court held the repeated, improper comments (reputation, finances, "put yourself in her shoes") injected improper elements and prejudiced the jury despite objections; party/agent distinction was not dispositive |
| Whether JNOV (judgment notwithstanding the verdict) was required | Begler’s testimony and Advocate’s expert definitions showed she only provided a standby assist, not a minimal assist required by the standard of care, so judgment should be entered for plaintiff | Evidence on both standard of care and causation was disputed; JNOV requires that all evidence viewed favorably to nonmovant so overwhelmingly favors movant that no contrary verdict could stand | JNOV denied. Appellate court found the JNOV standard not met; the evidence was close and causation remained contested |
Key Cases Cited
- Rush v. Hamdy, 255 Ill. App. 3d 352 (Ill. App. Ct. 1993) (closing comments about a defendant’s reputation or financial exposure may inject improper elements and warrant reversal)
- Torrez v. Raag, 43 Ill. App. 3d 779 (Ill. App. Ct. 1976) (appealing to jury about effect of verdict on defendant’s professional reputation is improper; reversal appropriate where evidence is close)
- Koonce v. Pacilio, 307 Ill. App. 3d 449 (Ill. App. Ct. 1999) (warning against asking jurors to put themselves in a party’s position; improper sympathy appeals)
- Kass v. Resurrection Med. Ctr., 316 Ill. App. 3d 1108 (Ill. App. Ct. 2000) (single reputation-focused closing remark found harmless given strong evidentiary context)
- Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258 (Ill. App. Ct. 1990) (inadmissible references to insurance or financial matters may be excused when isolated, inadvertent, and non-prejudicial)
- Lee v. Calfa, 174 Ill. App. 3d 101 (Ill. App. Ct. 1988) (improper attacks on nonparty expert can improperly influence verdict)
- Lenz v. Julian, 276 Ill. App. 3d 66 (Ill. App. Ct. 1995) (comments implying personal financial responsibility can be especially egregious and inflammatory)
- Pleasance v. City of Chicago, 396 Ill. App. 3d 821 (Ill. App. Ct. 2009) (sustained objections may be insufficient where comments were repeated or violated limine orders)
- Maple v. Gustafson, 151 Ill. 2d 445 (Ill. 1992) (JNOV standard: entry of judgment only when evidence so overwhelmingly favors movant that no contrary verdict could stand)
- Pedrick v. Peoria & E.R.R. Co., 37 Ill. 2d 494 (Ill. 1967) (articulates the high standard required for directed verdict or JNOV)
- Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (Ill. 2000) (procedural note on directed-verdict/JNOV timing and scope)