SHEILA JACOBS, Sрecial Adm‘x of the Estate of Gary L. Jacobs, Deceased, et al., Plaintiffs-Appellees, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellant.
Fifth District No. 5-96-0548
Appellate Court of Illinois, Fifth District
July 17, 1997
239 Ill. App. 3d 239
GOLDENHERSH, J., dissenting.
Thomas E. Jones, James C. Cook, and John E. Sabo, all of Walker & Williams, P.C., of Belleville, for appellant.
JUSTICE MAAG delivered the opinion of the court:
The defendant, Union Pacific Railroad Company, appeals from a circuit court order granting a new trial to plaintiff under
In March 1992, Gary Jacobs and his minor son, Benjamin, were driving their pickup truck to market with a trailer of hogs in tow. Upon crossing a railroad grade intersection in Shelby County, the truck collided with defendant‘s train. Gary Jacobs died as a result of injuries sustained in the accident.
Gary Jacobs’ surviving spouse, Sheila Jacobs, filed suit on behalf of herself, the estate of Gary Jacobs, and the couple‘s son as next friend (collectively referred to as plaintiff).
Prior to trial, defendant filed a petition for substitution of judge for cause pursuant to
At trial, deputy sheriff Donald Koonce testified regarding his investigation of the collision. Koonce explained that he had prepared two diagrams of the accident scene, one on the date of the collision and another the next day. The latter diagram depicted a more accurate measurement of the skid marks made by Gary Jacobs’ pickup truck, according to Koonce, because the wreckage on the day of the accident obscured the view of a portion of the skid marks. Specifically, the first drawing showed the marks to be 10 feet long. When remeasured the following day, Koonce found the marks to be 18 feet long. Koonce testified that the second drawing showing 18-foot marks was correct and the first drawing was wrong.
David Youngberg, a certified accident-reconstruction expert, testified for the defense regarding Gary Jacobs’ opportunity to avoid the collision. Youngberg testified that he had based his opinion regarding the skid marks upon the initial, inaccurate drawing prepared by Officer Koonce. Youngberg then sought to alter his prior deposition
Later, during closing argument, in response to previous suggestions that plaintiff had employed high-priced experts to testify on her behalf, plaintiff‘s counsel declared:
“What have you heard in this case? Well, you‘ve heard much—much harangue from Mr. Jones that Mr. Wеilmuenster and I have gone out and hired two of the best experts that money can buy. And there‘s no question experts are expensive when you have Ph.D.‘s and you have professors coming in from universities, who have their own consulting businesses on the side, who are acknowledged [as] the most finest [sic] experts in this state and possibly in this country on railroad grade sаfety crossings, railroad crossings—railroad grade cross—crossing safety and economics.”
Defense counsel, in closing argument, thereby responded:
“And Mr. Young says, well, he brought in two of the best experts that money can buy. Well, money shouldn‘t buy justice. It‘s not a matter of how—how much money you pay somebody. And the judge will tell you in the instructions, he will tell you that the evaluation and the credibility of any witness is for you to determine. And one of the issues you can decide in deciding credibility is the witnesses’ financial motive or financial interest that they have when they come and take the stand.
So I‘d suggest to you that you consider that fact when you consider the testimony of these witnesses that came in and were paid substantial sums of money to come in and testify. Do they have a financial interest? By all means, they have a financial interest and you heard what that was, and it was a significant financial interest.”
Plaintiff did not object to these statements in defense counsel‘s closing argument.
The jury returned a verdict for the defendant on all counts of plaintiff‘s complaint.
Plaintiff filed a posttrial motion requesting judgment n.o.v. or a new trial. The court granted plaintiff‘s request for a new trial, reasoning that plaintiff had been severely prejudiced by the testimony of defendant‘s expert, which was based on the inaccurate drawing, as well as by subsequent remarks made by defense counsel during closing argument.
Defendant appeals the order granting plaintiff a new trial. Specifically, defendant argues:
Plaintiff was not unfairly prejudiced by the trial court‘s order barring the testimony of defendant‘s expert, David Youngberg, and instruction that the jury ignore testimony given by Youngberg; - Plaintiff‘s own closing argument speaking to plaintiff having hired “two of the best experts that money can buy” opened the door to fair reply by defendant that “money should not buy justice” and that the jurors should consider the witnesses’ credibility themselves;
- Plaintiff waived the issue of prejudicial remarks by defendant during closing argument, by failing to object to the remarks at trial; and
- The court‘s order granting a new trial was motivated by its admitted bias and prejudice against defendant Union Pacific Railroad and its attorneys.
The standard of review when considering a circuit court‘s ruling on a motion for a new triаl is abuse of discretion. Usselmann v. Jansen, 257 Ill. App. 3d 978, 982, 629 N.E.2d 193, 196 (1994).
Plaintiff‘s contention that she was prejudiced by the testimony of Youngberg is without merit. The record indicates that plaintiff‘s counsel had questioned Youngberg about the 10-foot skid marks during his discovery deposition. Moreover, plaintiff‘s counsel explained to the jury himself in opening statement that he expected Youngberg to base his opinion testimony upon the original drawing showing 10-foot skid marks. With this in mind, we cannot conclude that plaintiff was in any way surprised by Youngberg‘s testimony at trial concerning the original drawing. To the contrary, it was expected. With respect to testimony regarding the 18-foot skid marks, the plaintiff objected and the court granted the relief requested.
Plaintiff complains of prejudicе as a result of the court ultimately barring Youngberg from testifying and as a result of the court instructing the jury to disregard the testimony Youngberg had already given. Plaintiff argues that she was consequently denied the opportunity to question Youngberg regarding his reliance on the 10-foot skid marks.
We find plaintiff‘s contention to be interesting. Plaintiff, after all, went to trial with her eyes wide open regarding the basis of Youngberg‘s testimony. Plaintiff‘s strategy apparently embodied a hope that Youngberg‘s opinion would be based on a false assumption. Plaintiff later asked the court to have Youngberg barred and his testimony stricken. Plaintiffs should be more careful of what they ask for—they might get it! A party may not request relief in the trial court and then complain in рosttrial proceedings about getting it. Morris v. Banterra Bank, 159 Ill. 2d 551, 640 N.E.2d 932 (1994).
The plaintiff and the dissent do not like the jury‘s verdict, but they and we must respect it. To do otherwise makes a mockery of our system.
The second ground upon which plaintiff‘s new-trial order was based was defense counsel‘s remarks during closing argument. The issue is waived. “‘A party cannot sit on his hands and let perceived errors into the record and complain of those errors for the first time in a post[ ]trial motion.’ [Citation.] Failure to make a timely objection at trial to alleged errors in an opponent‘s closing argument is considered a waiver of the objeсtion.” Ellington v. Bilsel, 255 Ill. App. 3d 233, 238, 626 N.E.2d 386, 389 (1993).
Even if we assume that plaintiff had made a contemporaneous objection to defendant‘s closing remarks, we nevertheless find that the complained-of comments were proper.
Plaintiff takes issue with defense counsel‘s remarks which referred to plaintiff‘s experts as “the best experts money can buy” and suggested that the experts wеre biased by their financial interest in plaintiff‘s position. Defense counsel further remarked that “money shouldn‘t buy justice.” For her contention that such remarks were inflammatory and unduly prejudiced the jury, plaintiff relies on the “hired gun” line of cases. Regan v. Vizza, 65 Ill. App. 3d 50, 382 N.E.2d 409 (1978) (awarding plaintiff new trial on appeal in light of
This court has previously had occasion to part ways with those cases. Moore v. Centreville Township Hospital, 246 Ill. App. 3d 579, 590-94, 616 N.E.2d 1321, 1330-32 (1993), rev‘d in part on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994); Ellington v. Bilsel, 255 Ill. App. 3d 233, 240, 626 N.E.2d 386, 389-91 (1993). Expert witnesses, we have recognized, are “‘hired partisans and in judging their testimony the jury is entitled to know whence they came.‘” Moore, 246 Ill. App. 3d at 592, 616 N.E.2d at 1331, quoting Sears v. Rutishauser, 117 Ill. App. 3d 61, 68, 453 N.E.2d 1, 5-6 (1983) (Webber, P.J., concurring in part & dissenting in part), rev‘d, 102 Ill. 2d 402, 466 N.E.2d 210 (1984). Accordingly, we held that “opposing counsel may argue to the jury that an expert witness is distоrting the truth for financial gain or is a professional witness, if evidence supports the argument.” Moore, 246 Ill. App. 3d at 594, 616 N.E.2d at 1332.
In the instant case, the record supports the propriety of defense counsel‘s remarks regarding the financial interest of plaintiff‘s experts. We therefore conclude that plaintiff was not unduly prejudiced by defendant‘s closing argument and that the trial court abused its discretion in granting plaintiff a new trial on that basis.
Finally, defendant contends on appeal that Judge Lopinot was prejudiced against Union Pacific Railroad, as evidenced by critical remarks made by Judge Lopinot in a previous, unrelated case involving Union Pacific.
Under Illinois law, a petition for substitution of judge for cause shall be hеard by “a judge other than the judge named in the petition.”
Here, defendant‘s petition was referred to Judge Donovan, who found no bias. A reviewing court will not reverse a determination on allegations of judicial prejudice unless the finding is contrary to the manifest weight of the evidence. In re Marriage of Schweihs, 272 Ill. App. 3d 653, 658, 650 N.E.2d 569, 573 (1995).
We find that Judge Donovan‘s determination was not contrary to the manifеst weight of the evidence. While Judge Lopinot‘s earlier
We affirm Judge Donovan‘s order denying the motion for substitution of judge. We reverse the circuit court‘s order granting plaintiff a new trial, and we reinstate the jury verdict entered in favor of defendant and enter judgment thereon.
Reversed; judgment entered.
KUEHN, P.J., concurs.
JUSTICE GOLDENHERSH, dissenting:
I respectfully dissent. My difference with the majority focuses on point 1 concerning defendant‘s expert, David Youngberg.
Plaintiff‘s argument to this court, sustained by the record, indicates that defendant‘s expert Youngberg was making measurements and calculations based on an incorrect measurement of 10 feet of skid marks. His discovery pursuant to former
The record clearly reflects that plaintiff in opening statement said that defendant‘s expert Youngberg had relied upon inaccurate figures as far as skid marks of 10 feet rather than 18 feet and that if said expert had used the appropriate number, the calculations of the two experts would be similar. The suggestion to the jury by plaintiff was not rebutted or commented uрon by defendant in opening statement. What triggered plaintiff‘s counsel‘s response and motion to bar under
“In the course of of analyzing braking behavior for vehicles, and based upon my reconstruction experience, I realized I had an 18-foot skid mark, but I also realized that that‘s not indicative of stopping distance. And one of the reasons is beсause vehicles have what you call overlap when they stop. When both front wheels and back wheels are skidding, the back wheels are going to lay down marks just the same as the front wheels and you have overlap and that and so if you have an 18-foot skid, that‘s not indicative of an 18-foot stopping distance.”
At this point plaintiff‘s counsel objected. The subsequent colloquy between counsel and the court outside the presence of the jury indicated that the theory of overlap, and integrating 18-foot skid marks into this theory, had never been disclosed to plaintiff as part of the
At this point plaintiff‘s counsel was faced with a dilemma; should he attempt in cross-examination to overcome this nеw theory of overlap with this belatedly recognized figure of 18-foot skid marks and attempt to bring defendant‘s expert in the vicinity of plaintiff‘s own expert‘s conclusions, or should plaintiff‘s counsel conclude that with this newly disclosed theory of overlap now integrating 18-foot skid marks, defendant‘s expert was predestined to come to conclusions different thаn plaintiff‘s expert and the best route for damage control would be to attempt to bar the expert entirely on the basis of the
The trial court was certainly in a better position than this court to determine whether plaintiff was unduly prejudiced by this course of events concerning defendant‘s expert. A review of the record shows that the court‘s conclusion that such prejudice occurred has support in the record, and accordingly, the trial court‘s decision to grant a new trial was not an abuse of its discretion. I therefore respectfully dissent.
RICHARD P. GOLDENHERSH
JUSTICE