Russo v. Corey Steel Co.
125 N.E.3d 1036
Ill. App. Ct.2019Background
- In July 2013 Frank Russo (plaintiff) was injured when a trolley crane struck the man-lift he was working in at Corey Steel Company (defendant); defendant admitted liability and the jury tried only damages.
- Jury awarded $9,987,000 (about $8.3M noneconomic; $300k+ lost earnings; $150k future medical).
- Plaintiff’s experts included Dr. Jeffrey Coe (occupational medicine) who opined to a reasonable degree of medical certainty that Russo will need additional hip treatment including future hip surgery; Dr. Scott Rubinstein (orthopedist) also testified that the injury likely accelerated arthritic change and future treatment was likely.
- Defense objected at trial to Dr. Coe’s opinion as lacking foundation and expertise; trial judge overruled and admitted the testimony.
- After verdict, case reassigned (trial judge recused); successor posttrial judge granted defendant’s new-trial motion solely on ground that Dr. Coe lacked qualifications to opine that future hip surgery would be needed.
- Appellate court reversed: successor judge erred to exclude Dr. Coe’s testimony as a matter of law; trial judge did not abuse discretion in admitting it; alternative posttrial challenges (video exclusion, remittitur) also rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether successor judge could reverse prior judge’s discretionary evidentiary ruling | Balciunas standard not applicable; successor may not overturn trial judge’s exercise of discretion absent clear error | Successor judge may review and correct prior interlocutory orders; exercise of discretion by successor is reviewable | Successor judge may overturn previous order if erroneous as matter of law; here posttrial judge treated admission as legal deficiency but appellate review is de novo for foundational questions; result: exclusion was erroneous |
| Whether Dr. Coe (occupational medicine) was qualified to opine that future hip surgery was needed | Coe is an M.D. in occupational medicine, routinely works with orthopedists, examines/treats orthopedic injuries and may opine on prognosis and need for future treatment | Coe not an orthopedic surgeon; no treating doctor had definitively said surgery was needed; opinion speculative and lacked foundation | Trial judge did not abuse discretion admitting Coe’s opinion; appellate court holds Coe met foundational licensure/familiarity requirements and his limitations go to weight, not admissibility |
| Whether defendant preserved objections to Coe’s testimony and whether some answers forfeited review | Defendant lodged contemporaneous objections and preserved the issue for posttrial relief | Specific contention that some answers (e.g., inability to say >50% likelihood) were unobjected and thus forfeited | Appellate court found some challenges (argument that Coe disqualified himself on cross by conceding uncertainty) forfeited for failure to move to strike; but overall admission was proper and posttrial exclusion was an abuse of discretion |
| Whether alternative posttrial grounds (surveillance video exclusion; remittitur of future medical/noneconomic damages) warrant a new trial or remittitur | N/A (plaintiff argues rulings were within trial court’s discretion and supported by record) | Video should have been admitted to rebut plaintiff counsel’s characterizations; future medical award unsupported and noneconomic damages excessive/passion-driven | Trial court’s partial exclusion of video was not an abuse of discretion; remittitur denied — jury award for future medical and noneconomic damages fell within reasonable range based on evidence |
Key Cases Cited
- Balciunas v. Duff, 94 Ill. 2d 176 (Ill. 1983) (successor judge should exercise restraint reversing prior discretionary interlocutory rulings; consider judge-shopping)
- Towns v. Yellow Cab Co., 73 Ill. 2d 113 (Ill. 1978) (successor judge not bound by prior judge’s order and may correct erroneous orders)
- McClain v. Illinois Central Gulf R.R. Co., 121 Ill. 2d 278 (Ill. 1988) (successor judge may overturn prior discretionary ruling where it is erroneous as matter of law or new matters warrant it)
- Gill v. Foster, 157 Ill. 2d 304 (Ill. 1993) (Purtill three-step test for medical expert qualifications: licensure, familiarity with methods, and court’s competency determination)
- Purtill v. Hess, 111 Ill. 2d 229 (Ill. 1986) (establishes foundational requirements for a physician expert)
- Jones v. O’Young, 154 Ill. 2d 39 (Ill. 1992) (medical expert need not specialize in same area as defendant doctor to testify on standard, licensure in all branches suffices)
- Richardson v. Chapman, 175 Ill. 2d 98 (Ill. 1997) (trier of fact has leeway to award future medical costs not specifically itemized but extreme divergence from evidence may require adjustment)