*1 516 ” (20
finding manslaughter.’ J. Marshall L. Rev. at voluntary Taylor 266.) 36 People Ill. quoting O’Neilladds: the new Act that a first murder though degree
“Even states a from right prevent defendant should have an jury absolute murder, it a degree regarding is silent considering second Steigmann argues bench trial. defendant Judge right. Symmetry appear bench trial should have similar would this, although foolhardy it reality might appear from prevent judge finding defendant to attempt for a 20 by mitigating circumstances.” accompanied the murder was Marshall L. Rev. at 230. J. found judge already because the trial
Additionally, is degree murder, first it difficult to understand defendant guilty of mitigat the court’s consideration prejudiced by how defendant was de finding guilty that he was second ing subsequent factors Voluntary Haddad, Replaces Murder Degree Second gree murder. Solved, Created, 19 Loy. Problems Problems In Illinois: Manslaughter (1988). Chi. U. L.J. of the circuit court is affirmed.
Accordingly, judgment Affirmed. JJ., LaPORTA, concur.
EGAN and Conway, Plain- Mary Ann BROWN, the Estate of Special Adm’x of NANCY al., Defendants-Appellees. et v. ATEF MOAWAD tiff-Appellant, Division) (6th 1 — 89—1359 No. First District 15, 1991. March Opinion filed *3 McNAMARA, J., dissenting. Associates,
Goldberg Goldberg Novoselsky A. & both of & and David Koester, Goldberg, Chicago (Barth Novoselsky, Tammy and A. H. David A. counsel), of for appellant. Stouffer, Chartered, (Neil Quinn, Maryanne Chicago
Pretzel & K. H. Chemers, counsel), Bruton, of Capron, ap- Robert Marc Michael G. pellees.
PRESIDING JUSTICE delivered the of the opinion RAKOWSKJ court:
Mary Ann Conway (the decedent) was admitted the University Hospital Chicago (Hospital) 1978. At the time of her July days admission she was six postpartum, pursuant to hospital pol icy, she was to the admitted obstetrical gynecological service. Her chief complaint on admission was severe and shortness pain back breath. The following day, decedent left medi Hospital against cal advice and was admitted to County Hospital, Cook where died several hours later. An autopsy revealed that the cause of death was a dissecting Brown, aortic The aneurysm. plaintiff, Nancy subsequently against filed a complaint Hospital and certain doctors alleging that the medical treatment of 22, 1978, the decedent on July was below the standard of care and caused her death. Following a trial, jury judgment was entered favor defendants. Plaintiff filed for a a motion new trial which the trial court denied. issues plaintiff raises on appeal are: whether it (1) was reversible error for the trial court to allow inflammatory evidence to be ar improperly gued and to the brought attention of the jury; (2) plaintiff whether granted should be a new trial where defe/ndants were allowed to present their entire case chief during plaintiff’s examination of ad witnesses; (3) verse whether the trial court’s denial of plaintiff’s re ed, for an quest Instructions, Civil, Illinois Pattern Jury (2d No. 5.01 1971) jury error; instruction was (4) reversible whether should be trial granted new because the jury comprised fair cross-section of the community; (5) whether the verdict was con evidence; to the trary weight manifest (6) whether defendants’ *4 gave opinion subject beyond matter expertise; (7) whether the trial court erred permitting defense counsel to argue the cause of the decedent’s death in his opening closing statement and argument. trial, Sholl, fourth-year Dr. John a
At resident in obstetrics was called as a gynecology, pursuant witness counsel (Ill. Rev. Stat. to section 2 — 1102 of the Code of Civil Procedure He when first admit ch. saw the decedent she was par. 1102). 2 — ted. time the back and shortness pain At that she informed him that Sholl noted that the decedent begun of breath had three hours earlier. skin cool and agitated apparent clammy was and in distress. Her was an “hysteric” and her color was He described the decedent as poor. and initiated a series of tests. woman. Sholl examined decedent embolism, examination, As a result of his Sholl listed pulmonary pan creatites, possible diagno infarction as pyelonephritis myocardial considered, requested Sholl being ses. Because these conditions were medi Schwartz, a from Dr. Alan a resident in internal consultation presented an unu According testimony, cine. Sholl’s decedent indicated that the final di history any sual for disease. Schwartz also embolism, agnosis might hysteria, pulmonary myocardial be infarction, disease, or gallbladder pancreatites, myocardites pericardi tes, embolism. Sholl diagnosis pulmonary but that the most was likely dissecting consider the of a initially possibility stated that he did not that, He because it was rare. further testified al aneurysm extremely pain, degree in some though always decedent seemed be her seemed to He decided to medicate with a sedative pain vary. he did want to mask her rather than medication because pain left the ability or interfere to communicate. Sholl symptoms with he returned to the hospital evening p.m. Hospital around When morning, family expressed the next dissatisfaction with decedent’s received, informed Sholl that the decedent care she to medical advice. leaving hospital contrary was witness that Ann Johnson testified an adverse Kimberly Dr. she the decedent in Shell's first-year she was a resident when treated resident, Angerman, attending Neil and the absence. senior Dr. Moawad, the decedent’s responsible Dr. Atef were also physician, noted that the dece- approximately p.m., treatment. At 9:45 Johnson consulting After with pain. back complaining dent was still severe one dose of Dr. Johnson ordered Angerman, Schwartz and during evening At some- medication and sedative. some pain point it was not dissecting aneurysm, of a but suggested one possibility symptom the decedent’s very likely considered as because generally abnormal some of the test results which pain, and normal were within dissecting aneurysm present aortic where this low despite probability, limits in the decedent’s case. Schulak, fourth-year from Dr. resident consult James requested the dece- monitored surgery. in vascular Johnson testified didn’t record them. She also during the but signs night dent’s vital *5 resident, kept Angerman, the senior informed the decedent’s condition. Sometime after Dr. Johnson was called midnight by nursing staff de- extremely agitated because decedent was and manding medication. Johnson noted that the had pain decedent been pain of severe since complaining p.m. night, 5:30 but previous that there no apparent emergency was medical her explain symp- medication, toms. Because of the decedent’s demand for pain constant if drug screen was ordered to determine she had taken illicit drugs. further that, Johnson testified although decedent’s illness not been diagnosed the time she left the Hospital, further tests ordered, had been decedent’s decision to leave the Hospital delayed diagnostic six or seven hours. process by
Dr. James Schulak testified as an adverse witness that when he first saw the decedent he did not think that a dissecting she had aneu- rysm he findings because found no physical diagnosis. normal, Her X and vital rays signs were age and her was younger than typical Therefore, was for the condition. he did believe that the diagnostic procedure known as an angiogram was indicated. Schu- lak added that he would have come to a different conclusion if the CBC test, blood which had been ordered for morning, the next was elevated.
Dr. Neil Angerman, the chief resident of gynecol- obstetrics and ogy during the relevant time period, was also called as an adverse witness. He testified that he first the decedent on saw evening July 1978. At that very time she agitated, was constant motion and repeatedly requesting pain medication. Angerman stated that he was the first to consider the of a possibility dissecting aortic aneu- rysm but he did not think the presence this condition was likely negative view of the diagnostic history test results that had been Rather, obtained. Angerman believed that the decedent’s symptoms disease, were more consistent with gallbladder though and that even bizarre, her behavior was he did not that she believe was psychotic. Angerman stated that he observed the decedent’s vital signs several times and communicated with Dr. Johnson regarding her condition throughout night. During time he saw no evidence that she was experiencing medical emergency.
Dr. Atef Moawad was the attending physician supervis- who ing the obstetrical service during decedent’s He hospitalization. testified as an adverse witness that he was aware of the fact that the decedent was severe which experiencing pain could have been attrib- utable to several of the illnesses under He consideration. was also symptoms cool, aware her other such as her agitation clammy skin. he her bizarre but did not He stated that considered behavior think of her hysteria problems. According sole source Moawad, he left medically the decedent’s condition stable when time, at 6:30 At her vital hospital p.m. July 1978. count, were signs, ray electrocardiogram chest X normal. blood Moawad stated that did not residents who moni- expect toring the decedent to call him unless there was throughout night agreed in her He also that he with the deci- change condition. added sion to medicate the with Demerol and Thorazine an at- decedent rather tempt pain to calm her until the source of her was determined than and mask her Moawad testified that pain symptoms. relieve *6 rare by the death was caused a disease. decedent’s the unit the dece- Bonnie Hilliard was one of nurses on the where 22, 1978, at morning dent On of she arrived hospitalized. July was the a.m., she that the dece- work at 7 thereafter was advised shortly Hilliard that she tried to hospital. dent wanted to leave the stated at the hospi- decedent and her members who were family convince the that hospital tal with her that she should not leave time be- However, a diagnosis cause it her and treatment. jeopardize would later, leaving short Hilliard notified that the decedent was time was family. with her of that ap-
Several members the decedent’s testified she family told them experiencing pain, severe but that doctors peared be her. The nothing wrong and that there with crazy she was was the decedent explained why of the doctors plaintiff testified none hospital. should not leave the and ad- Hospital by parents from the
The decedent taken on the County Hospital morning mitted to Cook at around 10:15 Cohen, resident, the dece- Marge 1978. Dr. senior treated July She testified as an occurrence witness dent when was admitted. cooperative. but pain to be in severe appeared the decedent of emer- high, Her rate were results pulse respiration abnormal, that the decedent’s condi- indicating gency blood tests were that she telephoned also testified deteriorating. tion was Cohen tests had been diagnostic per- to determine Sholl at the what Hospital Cohen, in- Sholl According results. subsequent formed and psychological pain formed her that the source decedent’s that, on her based observation organic. rather than Cohen testified decedent, By p.m. Shell’s assessment. agree she did with deteriorated, was trans- and she condition had further the decedent’s into unit, she went cardiac arrest. care where ferred to the intensive her, died at 2:15 the decedent to resuscitate Despite attempts several p.m. Following an the cause of death was determined be a autopsy, dissecting of the aorta. to the aneurysm According parties’ also revealed that the decedent experts, autopsy report congenital cystic disease of the arteries known as medial necro- sis.
The plaintiff regarding called four witnesses who testified provided of care defendant The first ex- quality by physicians. pert testify Carney, was Dr. a cardiovascular and thoracic Edward Schulak, surgeon. testified that the care administered Carney consultant, thoracic surgery recognized from the deviated standard care because he perform diagnose failed to proper procedures the aneurysm. available in According Carney, only procedure 1978 which would have definitively determined whether the decedent had a dissecting aneurysm aortogram. Although was an the procedure was invasive with some risk to the the other medical condi- patient, considered, tions being exception with the had been ruled hysteria, out. Carney stated that inadequate, Schulak’s consultation note was and that he should have recognized and communicated to the treating physicians that there was of a possibility dissecting aneurysm and aortogram recommended an the only as means of Car- diagnosing it. ney also criticized Schulak for failing interpret pain the decedent’s rather than organic origin. hysterical stated that these Carney omissions cross-examination, contributed to decedent’s death. On Carney acknowledged that the of the decedent revealed the autopsy presence necrosis, of a congenital condition known as cystic medial *7 condition which agreed weakened blood vessels. that Carney also none of diagnostic the procedures on the performed sug- decedent gested the of a presence dissecting aneurysm.
Dr. Scott Kale testified as an expert witness in internal medicine. He stated that the care provided Dr. Schwartz by was below the standard of care because failed to recognize that the decedent’s condition was stable and failed to to a transfer her service where she could more receive direct care. He also criticized Schwartz for not ordering to medication relieve the decedent’s pain which increased the risk of medical Kale also for formulat- emergency. criticized Schwartz ing the diagnostic impression the decedent from suffering hysteria when he was a resident and had not had second-year training sufficient or to experience hysteria differentiate between and Kale medical illness. further testified have that Schwartz should diagnostic communicated his his On impressions supervisors. with cross-examination, Kale if acknowledged that the decedent had re- a diagnosis it mained at the next Hospital day, possible would have made. been in expert as an obstet- by plaintiff
Dr. John Masterson was called quality pro- He of care regarding rics and testified gynecology. Dr. He Moawad, Sholl, Dr. Dr. and Johnson. Angerman vided Dr. standard of deviated from the physicians stated that all four of these to decedent’s death. care, this deviation caused or contributed and admitting for to an ser- He criticized Moawad decedent obstetrical fail- vice, her or transfer her another service and failing to evaluate Sholl for ing failing to follow on her condition. Masterson criticized up dissecting failing give the aneurysm, of a possibility consider medication, in failing arrange and adequate pain participate patient the resident consultations, failing to advise adequately emergency attending to confer with the patient’s failing staff of the condition and failing ade- and Johnson were criticized Angerman physician. condition, to communicate with failing quately monitor the decedent’s failing to treat dece- attending consulting and and physician Contrary to the defendants’ and relief. provide pain dent’s symptoms heart ray stated that the X of the decedent’s Masterson testimony, cross-examination, was abnormal. On which was taken on admission ordered for diagnostic tests which were acknowledged Masterson 22, 1978, diagnosis confirmed morning would have July it rare that was a condition. dissecting aneurysm aortic and Portman. He was Dr. Edward Plaintiff’s fourth witness in 1967 and began medical school graduated testified that he from After University. at Vanderbilt gynecology in residency obstetrics in years Portman two residency spent first of his completing year in He then gynecology. obstetrics and serving physician Navy residency his as well University completed returned Vanderbilt that he was oncology. in Portman stated as a fellowship gynecologic in Certified,” that he obstetrics “expert” “Board which meant private began practice testified that he He further gynecology. . and Illinois. Georgia, in Wisconsin 1972 and was licensed that he question, to counsel’s acknowledged, response Portman then presented school. He medical aneurysms had learned about sedatives, tran- classified as defining various medications postpartum complica- analgesics, possible as well as quilizers tions. Dr. provided by of care quality testified as
Portman then Dr. and Dr. Schulak. Dr. Sholl, Angerman, Schwartz Moawad, admission, decedent on fail- seeing for not was criticized Moawad *8 service, to consider a dissect- failing a medical to her to ing transfer ing aneurysm failing as a to a possible diagnosis, psychiatric demand failing consult rule out further monitor hysteria psychosis to or and to patient’s recog- condition. Portman Sholl for to failing criticized nize illness, diagnose the extent of the to or list as failing decedent’s high a priority dissecting aneurysm, admitting aortic the decedent to an obstetrical service and to transfer her a failing appro- to more priate Angerman failing service. was criticized for to the se- recognize condition, riousness of the not transferring decedent’s her off the ob- service, stetrical to failing recognize dissecting symptoms failing to aneurysm, Schulak, confer with Dr. a failing request consultation. Portman Schulak psychiatric failing criticized for to rec- ognize condition, the decedent’s acute failing obtain an adequate history physical failing examination and a request psychiatric consultation. Schwartz was failing recognize criticized the seri- condition, ousness of the not patient’s conferring with the senior resi- dent, failing to recognize dissecting a as a aneurysm diagno- possible sis and failing to a request psychiatric consultation.
Portman testified that the decedent’s death was not attributable to her signing advice, out the hospital against medical and that her condition would have rapidly deteriorated the next no matter day where hospitalized. cross-examination, she was On Portman acknowl- edged the admission he made in his deposition testimony that he was diagnosis in the expert of a “dissecting aorta.” Michaelis, Lawrence chief of cardiothoracic at surgery North- western University School, Medical testified as an witness for defendants. He dissecting stated that aortic are un- aneurysms very common in women under the age 40. He also stated that the diag- nosis of dissecting aortic aneurysm was missed the symptoms because diseases, resemble other and there are usually symptoms other in ad- dition to pain, such as a decrease in the patient’s red blood cells. He did not believe Schulak’s aortogram failure order an de- viation from the standard of care because the patient’s condition was time, stable and the procedure was too Mi- risky to warrant it. chaelis cystic necrosis, stated that medial the disease discovered dur- ing decedent, autopsy congenital is which disease weak- wall, ens the artery that this condition decreased decedent’s chances of long-term survival. He further testified that the decedent died as a result of leaving the Hospital against medical advice because tests could not be and the appropriate performed, activity physical involved in to another going may have hurt her. hospital
Plaintiff first contends that is entitled new trial because the trial court allowed evidence be inflammatory argued improperly claims that to the attention of the Plaintiff brought jury. *9 prejudicial were but improper they statements were not because only previous in to court’s order opposition also because motion in limine. Plaintiff brought a mo- initially granting plaintiff’s in experience limine to prior reference to Dr. Portman’s prohibit tion with granted trial motion performing plaintiff’s court abortions. might its be reviewed after Dr. Portman ruling the reservation that testified. Moawad, Shell, trial, that Drs.
At Dr. Portman testified Schulak deviated from the stand- Angerman, acceptable Schwartz and care, a result of their negligence. ard of and that the decedent died as of defense counsel asked expert, Prior to cross-examination plaintiff’s in limine. De- ruling its on the motion prior the court reconsider argued plaintiff’s expert, gynecologist, who was fense counsel from Schulak, surgeon, had deviated had testified that Dr. thoracic care, presented regarding no been of evidence had standard his formal after he expert’s experience completed professional prior ruling its so in 1972. The trial court modified training medical pro- regarding expert’s that the could hear further jury limited to one However, defense counsel was experience. fessional practiced, Portman had question facility to each where pertaining use of the term “abor- defense was also instructed avoid counsel in The trial place. of its pregnancy” tion” and substitute “termination in or- to confer with the witness court also allowed counsel and to ruling prepare him the in the court’s change der advise was ques- him when Portman for cross-examination. clinics, he re- nature his work at the various regarding tioned reproductive gynecology, family planning, plied that “it was office control, procedure.” first trimester abortion counsel was al first that defense
Although argues during of abortions Dr. Portman’s performance lowed to refer cross-examination, ar the record does evidence counsel, with cross-examination, compliance gument. defense On instructions, question regard one only asked Portman the trial court’s facilities with each of the treatment practice the nature of his ing Also, in accordance to 1989. which he associated from 1975 had been the term did not use instructions, with court’s defense counsel Rather, it Portman himself presented. in the questions “abortion” at the his var describing practice in the context who used the term given plain trial court had though This even ious clinics. occurred for witness cross- prepare opportunity tiff’s counsel additional
527 examination in in the order avoid the use term abortion jury’s presence.
We note no presented also direct examination Portman testimony regarding professional his after the experience completion residency he fellowship except 1972 the fact that Therefore, licensed to in several practice States. no evidence was pre regarding sented the nature of professional Portman’s over practice Furthermore, the next 15 years. although training expe rience that Portman did in the medical of ob identify speciality stetrics and gynecology, testified as to the standard of care in the highly specialized field of surgery. vascular rather than Consequently, permitting cross-examination, improper may trial court have too restrictive been in allowing questions regarding four Port Sears man’s over a In professional experience period years. Rutihauser 102 Ill. 2d the court ad *10 dressed the special surrounding circumstances of a testimony medical in a expert personal injury trial. The court stated that be cause characteristics of the medical condition at issue were often be yond the knowledge of the average person, jury had to on the rely testimony of the medical experts reaching in a verdict. The court also “ the expert’s opinion characterized one ‘has of which the sanction an oath but lacks the substantial safeguard of truth to testi applied mony concerning facts observed a witness is by by which afforded criminal law since the is opinion the result of no reasoning, and one ” (Sears, prosecuted can be for defective processes.’ mental 102 Ill. v. quoting Opp Pryor 2d 407 538, 294 (1920), 545.) Ill. Because cross-examination is the principal safeguard against errant tes (see Sears, timony 102 Ill. at 407), 2d defense counsel’s cross-exami nation of Portman was not improper.
At closing argument, defense counsel made following statements: let me just
“And tell in you people about who came here to make criticisms. Dr. Portman had who never seen a dissec- tion of an practice, aneurism in his who had never treated [sic] a patient aorta, with the dissection of the who the last six years last fifteen or ten spent greater majority abortions, of his time in years doing those first trimester doing those things interrupt during the first five pregnancy months.
* * * Dr. Portman Macon, said that he was in Georgia; and he work; had a clinic doing type and that he inwas Wis- 528 clinic, doing type he had a and he was
consin. And a clinic Chicago opened up came work. And that he is going who gentleman and closed it. That’s the one month surgeon and what the vascu- to make a criticism of vascular surgeon saw and did.” lar these statements because argues prejudiced by
Plaintiff that she was testimony. to Dr. Portman’s inflammatory contrary However, entitled and allowed broad argument, counsel is closing inferences which the evidence and the reasonable argue latitude to Ill. 3d (Sloan (1987), App. from it. v. O’Dell 159 may be drawn 848, 853, 105; Ill. 3d Angeli (1987), App. v. 512 N.E.2d Webb trial court is for the 508.) proper argument scope N.E.2d discretion, its deter determine, the court has abused its and unless Sears, Roebuck & Co. mination will not be reversed. Dotson 1036,1043, 1208. 157 Ill. App. defense counsel's case, nothing improper there was
In this
himself
abortions where Portman
performed
statement that Portman
However, counsel’s state
on cross-examination.
testified to this fact
“spent
greater majority
Portman
years,
ment that in the last six
was not
first trimester abortions”
years doing
of his time
those
statement was
Thus, we conclude that this
by the record.
supported
argument dis
closing
if defense counsel’s
even
improper.
was not de
in the
plaintiff’s expert
eyes
jury,
credited
of
of that
Portman’s
was cumulative
nied a fair trial where
testified
behalf. We
experts
three
who
fered
other
re
that,
counsel was limited
one question
also note
because defense
at each
he was
practice
facility,
of Dr. Portman’s
garding
nature
he spent
Portman on what
of time
proportion
unable to cross-examine
defense coun
provided. Finally,
professional
on each of the
services
came as no
Portman's
of abortions
performance
sel’s reference Dr.
*11
Portman
that his
already
testify
who had
heard
surprise
jury,
to the
of first-trimester abortions.
the performance
included
practice
Ill.
(1989), 186
University
Chicago
on
Plaintiff relies
Poole
of
746,
that the al
argument
of
App.
closing argu
and
of
cross-examination
allegedly improper
lowance
Poole,
plaintiff’s
asked
error. In
defense counsel
ment was reversible
any
disciplinary
of
medical
subject
he had been
expert whether
that he had not
expert
responded
since 1977. When
proceedings
a docu
produced
counsel
of this
defense
subject
proceeding,
been
that a disciplinary charge
1985 which reflected
ment dated November
then elicited affirm
Defense counsel
pending.
the witness was
against
allega-
contained
the witness that the document
responses
ative
from
During
tions of
defense
counsel
incompetence.
closing argument,
called
liar and
and referred to the
plaintiff’s expert a
a prostitute
pending
proceeding which
the witness
disciplinary
allegedly charged
with incompetence.
We first note that Poole is
distinguishable
because
referring
against
statements
to the
improper
disciplinary charges
witness were not relevant
to medical
as
were in
testimony
Poole,
the instant case.
Underwood v.
186 Ill.
at 561.
also
App. 3d
See
Pennsylvania
R.R. Co.
34 Ill. 2d
In this defense counsel’s cross-examination Portman re- garding the nature of his professional experience over a time 15-year period was relevant very to Portman’s medical Port- testimony where man, who was trained in obstetrics as gynecology, testified to the addition, standard care in vascular In been there had no surgery. on direct testimony examination the nature of Portman’s regarding experience this time during period. the defense counsel in Poole
The comments made by during clos- ing argument plaintiff’s expert prostitute was a and a liar were also far more inflammatory and unrelated to the facts of the case than addition, the comments counsel defense case. In Port- man himself acknowledged that he had performed during abortions his at several final employment clinics. A factor distinguishing Poole expert fact that witness who was the subject improper comments was plaintiff’s medical expert, op- posed to the instant case where had three other medical plaintiff ex- perts presented who testimony the same subject matter found in Portman’s testimony, who were not discredited in the presence of the jury. conclusion,
In we note that when counsel called Port- man testify as a medical expert he knew what Portman’s profes- sional training experience had been. When counsel offered Port- man, whose medical specialty gynecology, obstetrics as an in vascular surgery counsel should have expected oppos- ing would regarding experience. counsel cross-examine Portman This probable was even more where testimony regarding approxi- mately years of Portman’s professional experience had omit- been ted summation, from his direct In examination. we conclude that cross-examination of Portman was any and that improper impro- which occurred priety during closing argument was not reversible er- ror.
Plaintiff next contends that she is entitled to a trial new be cause trial failed limit court several defend ants were examined who as adverse witnesses. She *12 530 response in to
claims that because defendants volunteered information their defense plaintiff’s present counsel’s were able to questions, was during her Plaintiff cites three instances where Schulak case. to In the first instance the trial court sus- nonresponsive questions. of the testi- portion tained and struck relevant plaintiff’s objection plaintiff’s in the second instance witness answered mony, and was Dr. Schulak’s re- question. by plaintiff The third instance cited Plaintiff also cites four instances sponse question. to defense counsel’s first in- answers. In the two gave nonresponsive where Dr. Johnson In granted trial court motion strike. the third plaintiff’s stances the and was in- instance, respond question started to Johnson trial court allowed the wit- the fourth instance the terrupted, and making a determination as to ness to answer the before question her completed it when the witness responsive. whether was strike. answer, counsel failed to renew his motion to evidence, we that the wit Based on review the conclude our court or the trial responsive questions, nesses’ were answers Furthermore, arguendo, that objections. assuming, sustained counsel’s adverse during plaintiff’s evidence present defendants able examination, prejudiced how she was or has failed show alleged error. outcome of the trial was affected this how the Ill. (1983), App. v. Insurance Co. 112 3d (Holsapple Country Mutual 512, 909.) any has also to cite author 518, 445 N.E.2d Plaintiff failed was im of her contention that defendants’ conduct ity proper. trial court’s prejudiced by
Plaintiff contends that also In- (Illinois Jury Pattern refusal to tendered instruction give jury 5.01), 2d be- struction, Civil, (2d 1971)) (IPI 5.01 ed. Civil No. No. signs, decedent’s which defendants failed cause the records of vital Dr. Sholl Dr. Johnson. credibility critical produce, were signs vital were taken Both defendants testified that decedent’s hospital night, but were recorded decedent’s throughout never the sheet of provided paper explanation record. bedside, kept patient’s which the information was recorded to the rec- patient’s the information secretary and that a transferred case, hospital left the abruptly In the decedent day. ord the next unit removed from the before morning, and her record was the next could recorded. night be signs throughout the vital taken IPI 2d No. 5.01 is within the sound discretion Civil Giving for the trial court, granted trial be the trial new will has shown that where a party tendered instruction court’s denial (Schaffner Chicago & North Western serious resulted. prejudice
531
Thomp
Transportation
Co.
1,
643;
Ill.
(1989),
2d
son
v. Abbott
201-02,
Laboratories
193 Ill.
App.
instruction,
court must
deter
1295.)
giving
N.E.2d
Before
first
mine whether
under the
party would have
evidence
produced
facts
it
and circumstances
case unless
was unfavorable.
*13
(Thompson,
193 Ill.
3d
warranted
App.
202.)
only
instruction is
when a
is
the
the
presented
(1)
foundation
that:
evidence was under
control of the party and could have
the exercise
produced
been
with
of due diligence; (2) the evidence was not
to the ad
equally available
verse party; (3) a reasonably prudent
produced
would have
the
person
if
him;
evidence
he believed it would
been
to
(4)
have
favorable
there
produce
was no reasonable excuse for failure
the
evidence.
Tuttle v.
Division
Corp. (1984),
122
App.
Ill.
3d
Fruehauf
Fruehauf
of
835, 843,
Dr. Sholl stated that he the believed record of decedent’s vital signs was not available because the on they sheet which were first re document, corded was not the permanent decedent left the hos pital following the morning secretary before the had an opportunity to transfer this permanent Therefore, information into her record. there was evidence of a document, reasonable excuse for the missing the fourth element aof foundation for the giving of IPI Civil 2d No. 5.01 was not met. Although plaintiff argues that the determination of whether defendant’s excuse for not producing evidence was rea sonable should have been left jury, she cites no authority to argument. this Rather, cited authority supports oppo site proposition that the granting or of denying jury instructions is within province We, thus, trial judge. conclude that the trial judge’s refusal plaintiff’s jury tendered instruction was within his discretion and was not improper.
Plaintiff claims that she deprived of a fair trial because black jurors were excluded through defendants the use their peremp- in voir dire. Plaintiff tory challenges argues that defendants at- tempted prohibit jurors black from being impaneled by using their peremptory challenges exclude three black jurors. Defendants deny their they challenges used peremptory They based race. also argue they challenged Caucasians, five one Hispanic and two blacks. One of members initially selected was a black woman the alternate was a black man. The black female juror was subse- from the quently removed when she informed trial jury judge anwas of the decedent’s acquaintance sister. The United States Court has held that Supreme prosecutors not potential jurors solely criminal cases could strike based upon 532
the fact that
are
members
defendant’s race or ethnic
group.
(Batson
(1986),
476
L. Ed.
S.
Kentucky
U.S.
90
2d
106 Ct.
1712.)
not
Although
jurisdiction
this
has
decided
issue whether
actions,
holding
the Batson
should be extended to civil
the United
it is applicable.
States Court of
for the
has held that
Appeals
Seventh Circuit
(Du
Nursery
Crafts,
(7th
1990),
v. Frank’s
&
Inc.
Cir.
nham
However, in
1281.)
F.2d
Other
have held both
jurisdictions
ways.
case,
because,
reach this
even if the Batson
this
we need not
issue
to object
issue
ruling
applicable,
by failing
waived this
plaintiff
exercise of their
until the trial was
peremptory challenges
defendants’
People
adverse
See
v. Evans
concluded and an
verdict was returned.
50, 61-62,
Ill.
It is also contention that the wit- weight argues of the evidence. She the manifest failing ob- criticized defendant doctors presented nesses she consultations, attending involving physi- tain appropriate *14 service, cian, monitoring to not transferring not the decedent another dissecting her illness as a not correctly diagnosing her condition and ex- although that defendants’ argues aortic Plaintiff also aneurysm. no of the dece- Michaelis, that there evidence Dr. was pert, testified Hospital, the the lack of evidence dent’s illness while she was at count and vital failure to monitor blood physicians’ to the due aortogram. an signs and perform it aside where is palpably
A will be set jury verdict not unwarranted, and based erroneous, arbitrary or unreasonable 152 Ill. (1987), Co. v. Verson Allsteel Press (Bautista the evidence. negligent To a 524, 529, 772.) case present 3d App. standard of treatment, (1) the prove: proper must plaintiff medical measured; a (2) negli is conduct against physician’s care which the injury standard; (3) and that to with gent comply failure Ingle v. Hos conduct. by negligent caused proximately issue was 1057, 1064, 491 141 Ill. 3d (1986), App. System Health pital Sisters N.E.2d 139. Michaelis,-testified that case, expert,
In this defendants’ from the standard care not had deviated physicians the defendant by congenital a disease was caused that decedent’s death that the decedent’s also stated necrosis. He cystic known as medial of her worsening to the also contributed Hospital to leave the decision
533 addition, regard condition her death. In the defendants testified ing the their examinations and observations they performed, tests aneurysm why dissecting did not believe of a presence is equal a uses which likely. physician judgment, Where his best cases, in he is that similar ordinarily used doctors well-qualified out be even if that later turns negligence judgment liable for v. 270, 273, (Spike Sellett 102 Ill. 430 (1981), App. erroneous. 3d 597.) experts N.E.2d contra Although we dicted that of defendants as well as defendants’ cannot expert, erroneous, or arbitrary conclude that verdict was unreasonable. that in
Plaintiff further contends the trial court erred allow ing Dr. it testify regarding cystic Michaelis to medial necrosis because his that outside of Dr. Michaelis testified subject expertise. University was the chief cardiothoracic at Northwestern surgery exhibit, Medical School. When he stated that shown demonstrative it was an as excellent disease known representation process medial He then cystic proceeded necrosis. to describe disease detail. Considering qualifications testimony, Michaelis’ and his there is plaintiff’s allegation no for that the disease was be yond expertise. Furthermore, his er any has waived alleged ror by failing make a timely objection.
Finally, plaintiff contends that it was error reversible for trial court to allow defense argue counsel statement opening and closing argument decedent died from disease known which cystic medial necrosis probably since birth. Plaintiff also it claims that was error to argue allow defense counsel the decedent had a shortened life me expectancy cystic dial necrosis caused her death. is not It improper attorney comment statement opening on evidence be at the introduced trial, if he has a reasonable belief that the evidence will be admissible. (Yedor Properties, Centre Inc. Ill. App.
N.E.2d In 414.) closing argument, counsel has wide latitude to argue and all evidence reasonable inferences which drawn from may be Webb, it. 155 Ill. 3d at 853. App. case, report
In this autopsy indicated that decedent *15 had cystic medial necrosis. Dr. Michaelis testified that the disease was Therefore, illness congenital expectancy. which could shorten life these statements in argument supported by counsel’s were the evi Also, dence. counsel’s that medial cystic statement necrosis caused the decedent’s death was a reasonable inference which could be drawn Furthermore, any alleged from the evidence. error in counsel’s argu ment by plaintiff’s object. was waived failure is affirmed. of the circuit court
Accordingly, judgment affirmed. Judgment
LaPORTA, J., concurs. McNAMARA, dissenting:
JUSTICE I be a new trial because granted should believe remarks made defense counsel inflammatory by certain improper Both ac- argument. judge majority the trial during closing improper, the comments were but found knowledge that I oth- warrant a new trial. believe sufficiently prejudicial erwise. in were directed question
The comments of plain- who testified in favor Portman, expert of four witnesses one tiff. in tho- witness as an cardiovascular and expert
Plaintiff called one medicine; in expert as an internal racic another was called surgery; obstetrics gynecology. and a third was called an in in All four witnesses tes- gynecology. called as an expert Portman was that, surgical of medical and degree tified a reasonable upon based from the standard defendants deviated by the care certainty, provided daughter. care, death of leading plaintiffs thus trial, motion in limine granted plaintiff’s court Prior trial abortions any Dr. Portman about asking from prohibiting defendants granting When during years practice. his have may performed stated the trial court motion, rigorous objection, defendants’ over be inflammatory. references to abortion would any witness, as a at defendants’ request Portman was called When Dr. ruling. permit- The court modified his earlier limine the trial judge relating Dr. Portman one question to ask ted defense counsel The court practiced. where he had facility his work at each nature of abortion, and defense to mention defense counsel not admonished asked about when with that direction. complied counsel gyne- that “it was office replied Dr. Portman nature of his practice, abortion control, first trimester planning, reproductive cology, family procedure.” made defense comments following improper,
I to the turn now argument: closing counsel during who came here you people
“And me tell about just let never seen a dissection Portman who had criticisms. Dr. make a patient never treated who had practice, aneurism *16 aorta, with a last years dissection of who of the six last time in greater fifteen or ten had of his spent majority abortions, those doing doing things first trimester those years that interrupt pregnancy the first five months.” during At that for a point, trial court denied side- plaintiff’s request bar and The proceed argument. instructed defense counsel to with his court allowed plaintiff’s object counsel to to the remarks but surpris- ingly overruled the objection. ruling because there surprising had been no testimony greater that Dr. Portman spent major- ity time After doing ruling, first-trimester abortions. the court’s defense as proceeded counsel follows: Macon,
“Dr. Portman said he was and he had Georgia; work; a clinic doing type of and that he was in Wisconsin. clinic, And he had a doing and he was type work. And that he came to Chicago and for one opened up clinic month it. and closed That’s the gentleman who is going make a criticism of the surgeon vascular and what the vascular surgeon saw and did.”
Since Dr. Portman volunteered the information that he had per abortions, formed defense nothing counsel did in the improper presen tation of evidence. his comments during closing argument untrue, were not but inflammatory highly prejudicial plaintiff’s case. Abortion is an incendiary issue. re Defense counsel’s marks in this case demonstrate his recognition that di abortion has vided this country between those who believe that abortion any amounts murder versus those who in a right believe woman’s have an abortion at any matter, time. As a subject has no abortion probative value the medical case re malpractice before us. The marks constituted a character, veiled attack on Dr. Portman’s and no one can assess the impact have had Poole they may (See on the jury. v. University Chicago 186 Ill. App. 746.) Such comments should not be countenanced.
Nor can the remarks be found to be harmless error on the ground that Dr. Portman’s testimony was merely plaintiff cumulative since presented three other expert witnesses. Each of the witnesses had a field of medical expertise, and remarks directed about Port- man may have been fatal to case. court,
At oral before this defense argument counsel stated that it defense which acted but rather it was improperly, plain- tiff’s counsel who acted unwisely offering witness a performed doctor who had No abortions. statement could demonstrate vividly more as a result of the com- prejudice plaintiff suffered ments in question.
I do not find that of the other com- any assignments error however, I plained would, warrant a new trial. reverse on the of the trial court and remand for new trial ba- judgment sis closing of the prejudicial argument. *17 MALINOWSKI, Petitioner-Appellee,
In re MARRIAGE OF LUCJAN MALINOWSKI, Third-Party Plaintiff Respondent-Appellant MARIA Hurman,
(Irena Third-Party Defendant-Appellee). Division) (6th No. 1 — 90—0191 First District 15, 1991. Opinion filed March