MacK v. Anderson

al., Independent WANDAMACK et Warren, Adm’rs of the Estate of Eloise Deceased, Plaintiffs-Appellants, III, v. KENNETH ANDERSON Indiv. and as Agent Employee S.C., an al., Surgical Group, Anderson et and/or

Defendants-Appellees. (4th Division) First District No. 1 — 04—1477 Opinion filed December 2006. Bruce, Smith, PC., (Larry C.

Power, Chicago Rogers, R. Devon Rogers & of counsel), Houlihan, appellants. for and M. of Sean (Mark Anderson, Partners, Jennings, Lura I. LLP J. and Diane Rasor & (Robert counsel), Stouffer, Marc and Scott L. Pretzel Chtrd. Chemers of and & Howie, counsel), Chicago, appellees. both of of of opinion NEVILLE delivered the the court:

JUSTICE Sr., independent Furlough, Mack and Rex the administra- Wanda (the a plaintiffs), tors of Eloise Warren’s estate filed medical malpractice wrongful action in death and named the circuit court for Anderson, Keddington, as Dr. Dr. defendants Kenneth Judith and S.C., Surgical individually agents and of SSM Group, Anderson Corporation, doing Hospital Health Care business as St. Francis and (St. (the defendants). Hospital) jury After a Health Center Francis trial, judgment appeal, a entered for On the was the defendants. (1) plaintiffs following for our whether present the three issues review: 79, Kentucky, and violated Batson v. the erred trial court 69, (1986), L. and plaintiffs Ed. 2d Ct. 1712 the the S. when given challenges defendants peremptory defendants were five but the challenges used remove from their five to five black (2) it jury; jury whether the trial court erred when instructed (2005 ed.) Civil, Instructions, Jury Pattern No. 12.05 Illinois (hereinafter (2005)); IPI Civil and whether the trial court erred judgment notwithstanding the plaintiffs’ when it denied motion for the verdict.

BACKGROUND of only involves a discussion those facts opinion This presented appeal. April On to address the issues court needs 26, 1999, Hospital for the Ms. admitted to St. Francis Warren was to having fundoplication performed purpose laparoscopic of a Nissen Kedding- Dr. help her acid Dr. Anderson and alleviate reflux condition. fundoplication procedure. After laparoscopic ton Nissen performed in her began experience swelling Ms. neck operation, Warren to April May 27 and Ms. tightness and her chest. Between Warren rays diagnose underwent a series of and X tests problems experiencing. she was On May Dr. Anderson and Dr. Keddington performed laparotomy repair perfora- on Ms. Warren stomach, tion of the anterior wall her which occurred laparoscopic initial fundoplication April 26, May Nissen 1999. On 9, 1999, Ms. Warren underwent another chest X which ray, revealed Shortly thereafter, extensive emphysema. opera- subcutaneous another tion performed right was pneumothorax relieve tension that had developed in her On May 10, chest. two weeks after she underwent the laparoscopic fundoplication surgery, Nissen Ms. War- ren suffered and Furlough, cardiac arrest died. Mack and independent estate, complaint administrators Ms. Warren’s filed a for wrongful Anderson, death and Keddington, named Dr. Dr. and St. Hospital Francis as defendants.

Jury Selection 19, 2003, August began. On selection given each challenges. Jury defendants were five peremptory selection jurors being in the following culminated Cahill, selected: Panel 1: Patricia MacDonald, Holmes; Labranche, Deanne John and Sharonda selecting jurors, while panel prospective juror Raymond second Riley challenged attorney; and excused Dr. Anderson’s Panel 2: Hurtado, Correa, Hervai; Sietsema, Claudia Irene Michael and Lois Mary Quarles, Strotman, Blafka, Panel Ellen Mary 3: Robert Raymond Davies. panels jurors parties,

After the three selected began selecting court following colloquy the alternates and the took place: *** Collins, “THE Panel the plaintiffs COURT: now to is and Stewart,

Larry ramp worker at O’Hare.

MR. ROGERS:Plaintiff tenders. you right. Anderson,

THE COURT:All are tendered Norma Col- Larry lins and Stewart. Stewart, Larry

MR. LURA:Anderson will use his last strike on your Honor. you Very panel

THE COURT: well. The to is Collins and now Bowman, Keddington? to goes Keddington. and that

[*] v ^[*] Honor, going Your I’m to Ms. Collins. MR. LANGHENRY: excuse Keddington right. All The panel THE COURT: excuses Collins. you Barry. to now is and Bowman $ ^ ^ I Again, representation

THE COURT: don’t—there was no here. Rogers attorney/client there He consulted with Mr. was no No, going relationship I’m cause. established. excuse Barry. Mr. excuse I move to MR. LANGHENRY: doing this? Barry, Mr. who’s THE COURT: Keddington. MR. LURA: Keddington.

MR. LANGHENRY: right. All by Keddington. Barry excused Mr. THE COURT: and Orlassia Latonya Bowman you now is panel to Hospital, the Sims. Sims, your Honor. I’ll strike ENRIGHT:

MS. Seals. you is Bowmanand Verywell. Panel to THE COURT: that, your accept I’ll Honor.” MS. ENRIGHT: MOTION BATSON THE PLAINTIFFS’ Hearing the Batson Step One of Roger Seals were Latonya Bowman After the alternates motion, attorney made a plaintiffs, plaintiffs’ to the tendered 69, 106 S. Ct. Batson, 90 L. Ed. 2d pursuant challenges to peremptory had used their arguing that the defendants argued counsel jury. The exclude five black have stricken has been juror that the defendants “[ejvery single by the defendants were: African American.” The excused black (3) (4) (1) (2) Ruben Norma Raymond Riley, Larry that Dr. Anderson’s Barry, and Sims. The trial court noted Orlassia Stewart; Riley and peremptory challenges to exclude counsel used his peremptory challenges Dr. used her to exclude Keddington’s counsel challenge to Barry; hospital peremptory Collins and and the used its of the trial then that “in terms exclude Sims. The court stated give me a race here, required the defendants are procedure believe argued defendants challenges.” each of these neutral reason for of discrimination pattern failed to establish Holmes, Labranche, Sharonda jurors, three of the John because African- Quarles, by the defendants were Mary accepted Ellen stated that all of the defendants’ Americans. The court that the African-Americans and against had exercised challenges been exclusion. reason for their provide had to a race-neutral defendants Hearing of the Batson Step Two Riley Raymond dire, he noted that voir attorneys One of the attorney Riley. The defendants’ expressed Raymond had concern about at- with the eye made contact Riley up stated that never looked or that attorney opined and one defense torneys being questioned when he did attorney stated that juror. Plaintiffs’ might “goofball” he be a “goofball.” Riley not think was a

During additional questioning chambers, in Riley stated that he had high education; school that he has jobs worked in various since graduating high 1977; in school and that he having any was not problems understanding the nature of proceedings. At the conclu- sion of the questioning, the judge trial stated that he did not think Ri- ley “goofball,” was a and that he did not think Riley that is “the type going that’s to be obstructionist back there in room.” Defense counsel, when providing reason, a race-neutral reiterated his concern Riley would be a goof “border-line juror” due to his lack of eye contact and the fact that his personality type was not suited sitting on a medical malpractice jury.

Larry Stewart When discussing venireman Larry one of the defendants’ attorneys stated that he was excluded because he nodded his head when posed question counsel to the awarding venire about damages. Defense counsel stated that when plaintiffs’ counsel asked panel damages, about Stewart was “nodding yes, his yes, yes, head yes before the was even out of his mouth.” Defense counsel “granted stated that these have heard all of our questions before, given but the affirmance dollars, that he awards millions of can’t afford to have Mr. Stewart on jury.”

Norma Collins When Norma questioned Collins was during dire, voir the trial judge asked whether she had been a party to a replied lawsuit. She that she was involved compensation worker’s case. judge The trial then stated thing “[o]ne everybody should understand is that worker’s compensation system totally different than this. It has dif- rules, ferent regulations, structure, different different totally differ- ent.” judge The trial said you just “So can forget about that[?]” and responded “yes.” Collins

While providing the court with a race-neutral reason for excluding Collins, the attorney defendants’ her compensation cited worker’s injury claim. The attorney stated his she view talked about the matter as if it positive was “a real thing.” Defense opined counsel very litigious person. Collins was a Defense counsel also stated that he all group observed Collins’ during the questions involving damages and silently that Collins nod- ded that time.

Ruben Barry During dire, voir venireman Barry Ruben mentioned that he met consulted with the plaintiffs’ attorney (Larry Rogers) possible representa- counsel’s regarding plaintiffs’ in 1994 sometime he met although that Barry stated death lawsuit. wrongful in a tion Barry him on the case. did not retain attorney, he plaintiffs’ with attorney opinions plaintiffs’ about any not formed stated that he had impartial be fair and impair ability his to firm that would or his plaintiffs’ he met with counsel asked whether this case. When defense he could not recommendations, Barry stated based on counsel counsel’s name plaintiffs’ received initially he remember how contact him. Barry does because stated that he was concerned

Defense counsel plaintiffs’ perhaps that the attorneys the defense and any not know past relation- leg up your because of get “a little bit of counsel would concern, but Barry responded him.” that he understood ship with also, leg because got true that he’s down opposite that “the could be he did not see judge him.” The stated that go we didn’t tried jury. providing a race- anything wrong having Barry on the When with attorney repeated excluding Barry, the defendants’ neutral reason for the reason for attorney was acquaintance plaintiffs’ that his with the him. excluding

Orlassia Sims excluding reason for venire- provide When asked to a race-neutral Sims, only that his attorney Orlassia the defendants’ stated woman watching “I her we were wait- observation of Sims was that was while selection, she disinterested ing appeared it to me that going through. I was concerned that she proceedings that we were pay attention the case.” wouldn’t be motivated Hearing Three of the Batson Step their reasons for exclud- attorneys provided the defendants’ After argued venirepersons, plaintiffs’ counsel ing the five African-American they observed the attorneys argued defendants’ that although that heads, attorneys none of the defense potential jurors nodding their about observed. question any venirepersons of the what chose to not reflect that the argued also that the record does Plaintiffs’ counsel Plaintiffs’ questions. to some venirepersons nodding response alleged head-nodding any did of the argued counsel that he not observe bias on that, that there was no if the record reflects anything, plaintiffs’ Bat- The trial court denied venirepersons. behalf of the “Well, all noticed jurors. also seen We have stating, son motion we’ve language is favorable body body language people. Sometimes court stated it’s not.” The trial to us and sometimes challenging reasons for attorneys provided jury. who were excluded venirepersons the African-American Finally, after the trial motion, court denied the Batson plaintiffs challenged Bowman, and Seals and accepted Blameuser were jurors by as alternate parties.

The Trial proceeded The case August to trial on 2003. The presented the following Yong Choe, witnesses: Dr. Khu Dr. Shaku Teas, Ulaszek, Anderson, nurse James Dr. Furlough, Rex Etta Furlough, Adams, Perry, Gloria Dr. Keddington, Patricia Dr. Stuart Gourlay, Mary Furlough. presented following defense wit- Anderson, Keddington, Jr., nesses: Dr. Dr. Fitzgibbons, Dr. Robert September 2, 2003, Dr. Shaku Teas. On returned general Anderson, verdict in favor of Dr. Keddington, Dr. and St. Francis Hospital, finding that the defendants were not negligent and/or nothing the defendants did proximately or failed to do caused Ms. September 3, 2003, Warren’s death. On the trial court a judg- entered ment on the verdict. plaintiffs seeking The filed a motion judgment notwithstanding 20, 2004, the April verdict or a new trial. On trial the plaintiffs’ posttrial court denied the motion.

ANALYSIS I. Batson plaintiffs’ argument appeal The first is the defendants peremptory challenges used their jurors to exclude five black from the Batson, 79, 69, violation of L. 476 U.S. 90 Ed. 106 S. Ct. 1712. plaintiffs argue provided by The that the race-neutral reasons excluding the defendants for the jurors nothing five black were more than a pretext plaintiffs for racial discrimination. The specifically contest the provided by attorneys race-neutral reasons the defendants’ excluding jurors: Larry three of the black Norma During hearing, Orlassia Sims. the Batson Dr. Anderson’s at- torney excluded Stewart topic because he nodded his head when the damages panel, hospital’s attorney was asked of the and the excluded nodding topic Sims because addition to her head about the of dam- ages, Kedding- she seemed Dr. proceedings. disinterested the attorney explained peremptory challenge ton ’s that he used a claim, compensation exclude Collins because she filed a worker’s litigious person, because she was viewed to be a and because she silently topic damages panel. nodded the The when was asked of plaintiffs objective contend that the defendants’ was to exclude jurors jury. black argue correctly

The defendants that the trial court ruled that the exercising peremptory challenges their reasons for

43 valid, race-neutral reasons. exclude the black were upon based their argue excluding venirepersons defendants also one language reason because body conduct and jurors. potential the demeanor of purpose of voir dire is to observe demonstrate have failed to argue The defendants excluding the black that their race-neutral reasons for Furthermore, contend that the record refutes genuine. the defendants although they had claim of racial discrimination because (1) exercised, the defendants peremptory challenges they could have (2) permitted jury, three African-Americans to remain on the alternate, but she was accepted defendants an African-American as an plaintiffs’ attorney. excluded Batson, that,

In the United held Supreme States Court criminal equal protection fourteenth amendment’s clause prohibits a prosecutor using peremptory challenge from to exclude a prospective juror solely Batson, on the his her race. basis of or 476 89, 83, Batson, U.S. at 90 L. Ed. 2d at 106 S. at 1719. Under Ct. equal protection clause is violated the facts that the State when show venireperson assumption excluded an African-American on the that he or she would be biased in favor of defendant their simply because of Batson, 97, 88, shared race. 476 U.S. at 90 L. Ed. 2d at 106 S. Ct. at Ohio, 400, 1723. In 411, Powers v. 499 U.S. 113 L. Ed. 2d 111 S. Ct. (1991), 1364 the United Supreme recognized States Court that Batson ” ends,’ designed multiple “was ‘to serve only one of which was to protect individual defendants from discrimination in the selection of jurors. Powers, 406, 499 U.S. at L. Ed. 2d at S. Ct. at 1368, citing 255, 259, 199, 205, Allen Hardy, 478 U.S. 92 L. Ed. 2d curiam) Louisiana, (per (quoting S. Ct. Brown v. (1980)). 323, 329, 65 L. Ed. 2d 100 S. Ct. protecting defendant, sought addition to protect Batson excluded community large prosecutor’s and the at from a Powers, 406, discriminatory peremptory challenges. use of 499 U.S. at 422, 1368, Batson, 87, citing 113 L. Ed. 2d at 111 S. Ct. at 476 U.S. at 81, 90 L. Ed. 2d at 106 S. Ct. at 1718. The extension of Batson in this designed remedy “dignity context the harm done the McCollum, persons” and to “integrity Georgia the of the courts.” v. 42, 48, 33, 2348, 44, (1992), 505 U.S. 120 L. Ed. 2d 112 cit- S. Ct. 2353 Powers, 402, ing 419, L. 499 U.S. at 113 Ed. 2d at 111 S. Ct. at 1366. may

The rule announced in Batson —that the not use State peremptory challenges purposefully exclude based on their Ed applies equal private litigants force to civil cases. race— Co., 614, 630, 660, 114 2d monson v. Leesville Concrete 500 U.S. L. Ed. 680, 2077, (1991); McPartlin, 111 S. Ct. 2088 see also McDonnell v.

44 505, (2000); 192 Ill. 2d 526 Jones v. Memorial Hospital, 316 Rockford (2000). 124, App.

Ill. 3d 127 provided three-step The Batson Court a process for evaluating claims of discrimination in selection. Rice 333, 338, 824, 831, 969, v. 546 U.S. 163 L. Ed. 2d 126 Ct. S. (2006). First, moving party 973 the making must meet his burden of prima showing nonmoving party that the exercised peremp its facie tory Rice, challenge 338, on the basis of race. at L. 2d U.S. 163 Ed. 831, 973, Batson, citing 96-97, at 126 S. Ct. at 476 U.S. at 90 L. Ed. 2d (2000). 88, 1723; 307, at 106 S. Ct. at People Easley, v. 192 Ill. 2d made, If a prima process case is the step, moves to the second facie where the burden nonmoving party then shifts to the to articulate a Rice, for excusing venireperson. the 546 U.S. 338, 831, 973, Batson, at 163 L. Ed. 2d at citing 126 S. Ct. at 97-98, 88, 1723; at 90 L. Ed. 2d at Easley, 106 S. Ct. see also 2d at nonmoving party 323-24. Once the articulates its reasons for excusing the venireperson question, process moves to third step, moving where the trial court must determine party whether establishing Rice, has carried his burden purposeful discrimination. 338, 831, 973, Batson, 546 U.S. at 163 L. Ed. 2d at citing 126 S. Ct. at 98, 88-89, 476 U.S. at 90 L. Ed. 2d at 106 S. Ct. at At the third 1724. step, provided the trial court nonmoving evaluates the reasons party by moving party proffered as well as claims that the reasons Rice, pretextual. 831, are 546 U.S. at 163 L. Ed. 2d at 126 S. Ct. 973; Davis, People (2004), citing 345 Ill. App. 3d Pecor, Ill.

A. The Prima Facie Case Batson, According to in order prima to establish a case of facie purposeful peremptory challenges, discrimination the exercise of its moving party, plaintiffs, present any here the must other facts prosecutor, relevant circumstances which raise an inference that the attorneys challenged venirepersons the defendants’ in this on ac Batson, count of their race. 476 U.S. at L. 2d at 90 Ed. 106 S. generally Ct. at 1723. Some of the factors deemed relevant in establish (1) ing prima identity case of discrimination include: the racial facie (2) moving venireperson; pat and the party between excluded (3) venirepersons; against tern of strikes African-American disproportionate peremptory challenges against African- use (4) venirepersons; representa of African-American American level (5) prosecutor’s ques compared jury; tion in the venire as to the exercising and statements voir dire examination while tions the excluded African-American ve peremptory challenges; whether heterogenous group sharing only race as their nirepersons were a characteristic; victim, moving party, common and the race of the (1996). Williams, 48, and People witnesses. v. 173 Ill. 2d These examples the generally recognized relevant factors or circumstances “merely illustrative,” Batson, are and are not all-inclusive. 476 U.S. at 1723; Holman, 90 Ed. 2d People L. 106 S. Ct. at v. 132 Ill. 2d 128, 173 although the trial did specifically court not state that plaintiffs presented prima discrimination, case of racial it facie rules, stated that based upon procedural the Batson the defendants

had to provide a race-neutral excusing reason for the African-American venirepersons. Raymond We note that the venireman Riley, a black juror, challenged and by attorney removed Dr. Anderson’s while parties were selecting panel jurors. the second We also note that the defendants exercised peremptory challenges four successive remove the following prospective jurors black jury: Larry Norma Barry addition, Ruben and Orlassia Sims. In we identity note a racial plaintiffs, between the moving parties, jurors the five excused; black that were we note a pattern of strikes because four of the five challenged black in succes- by defendants; sion disproportionate we note a number of peremptory challenges were exercised against defendants one group jurors, jurors, the black because 100% of the defendants’ peremptory challenges against were exercised jurors. black Conse- quently, we note that once the defendants peremp- exercised their five tory challenges excluded the five black and the attorney motion, made his Batson the trial court conducted a Batson hearing.

B. Race-Neutral Reasons Defendants’ Proffered Our review now turns to the step second in the procedure Batson to determine whether the defendants’ excluding reasons for venirepersons African-American were race-neutral. We note that the question of whether the have prima established a case facie of discrimination point becomes a moot once the trial court rules on question ultimate valid, and finds supporting reasons the peremptory challenges. Rivera, People (2006); v. 221 Ill. 2d 481 see People Hudson, also (1993), 157 Ill. 2d 427-28 citing People v. (1992) (“[T]his Mitchell, 152 Ill. 2d court has recently held that once the trial court rules on question the ultimate of discrimina tion, of whether the prima defendant established a facie moot”). case became also explanation We note that the excusing for venireperson cause; need not rise to challenge the level of a however, a mere nondiscriminatory assertion of good motive or of Andrews, rebut 155 Ill. 2d prima

faith will not case. facie (the (1993); Davis, see 3d at 911 trial court also give rubber-stamp approval explana nonracial should offered tions). it reasonably specific, must be clear and must be legitimate exercising challenge, contain reasons for the and it must Batson, particular related to the case be tried. 476 U.S. at 98 & n.20; n.20, n.20, at & 90 L. Ed. 2d at 88-89 & 106 S. Ct. 1723-24 Davis, 911, Allen, citing App. Ill. v. 3d 345 3d at (1987). 397, 404 The must demonstrate that the excluded particular the cause venireperson “specific exhibited a bias” related to trial, may party other than that his or her shared race with a bias Andrews, Ill. 2d at 293. also party. him or her in favor of that 155 We bearing upon much the note that there will seldom be evidence “ and the ‘best evidence often will question ultimate of discrimination ” attorney challenge.’ People the of the exercises the be demeanor who 481, 502, 771, (2006), Rivera, quoting 221 Ill. 2d 852 784 N.E.2d York, 352, 365, 395, 409, 2d 111 New 500 U.S. 114 L. Ed. Hernandez v. (1991). 1859, attorney’s The the state of S. Ct. 1869 evaluation of credibility, which lies mind is most often based on demeanor Hernandez, 365, 114 L. 500 U.S. at judge’s province. within the trial Witt, 409, 1869, 469 quoting Wainwright 111 Ct. at U.S. Ed. at S. (1985). 844, 841, 854, The trial L. Ed. 2d 105 S. Ct. 854 proved has been finding purposeful of whether discrimination court’s on review unless it is finding is a of fact and will not be overturned Hernandez, 114 L. Ed. clearly be erroneous. found to Andrews, 1869; Ill. 2d at 293-94. 2d at 111 S. Ct. at excluded the jurors five black while only three of the black attorneys, plaintiffs argue the race-neutral. for reasons that were not valid or jurors were excluded exercising their object to the defendants plaintiffs specifically The Stewart, venirepersons Larry Norma peremptory challenges against Therefore, limit our consideration Collins, and Orlassia Sims. we jurors who were excused the three aforementioned black this case to by the defendants. because he they excluded Stewart explained

The defendants panel, the damages was asked of topic his head when the nodded nodding her head about in addition to was excluded because and Sims during proceedings. disinterested topic damages, she seemed challenge peremptory explained that exercised The defendants claim, compensation filed a worker’s Collins because she to exclude she and because litigious person, to be a she was considered because panel. of the damages was asked topic nodded silently when C. The Trial Court’s Findings Batson The trial accepted court excluding defendants’ reasons for black and denied “Well, stating, Batson motion jurors. we’ve also seen We have all body language noticed people. body language Sometimes that is favorable to us and sometimes it’s not.” The trial court found that “[i]n terms of Mr. Ms. Col- lins, Sims, and Ms. the [defendants’] concerns seem to be their at- damages, titudes toward which I believe is race neutral reason.” The trial court stated that there was no Batson violation because the defendants’ attorneys provided excluding reasons for five black jury.

II. Evaluation of the Trial Court’s Findings Now, we findings review trial court’s at the conclusion of the step third of its Batson hearing. that must be answered step the third of Batson is plaintiffs whether the carried their proving burden of purposeful Cockrell, discrimination. Miller-El v. 322, 338, U.S. 931, 951, 154 L. Ed. 2d 123 S. Ct.

Here, the critical question in determining whether have proved purposeful discrimination at the third step persuasive is the ness of the defendants’ explanations exercising their challenges against three of jurors. Cockrell, the five black 537 U.S. at 338-39, 951, 154 L. Ed. 2d at 123 S. Ct. at plaintiffs 1040. The maintain that given defendants were five peremptory challenges and they were all against exercised black jurors. At this step, “implausible or (and will) fantastic justifications may probably be found to be pretexts purposeful for Cockrell, discrimination.” 339, 537 U.S. at 154 L. Ed. 951, 2d at 123 S. Ct. at Elem, quoting 765, Purkett v. 514 U.S. 1040. 768, (1995). 131 834, 839, L. Ed. 2d 1769, 115 S. Ct. 1771 The issue comes down to whether the trial court finds the explana race-neutral tions to Cockrell, be credible. 339, 537 U.S. at 154 L. 951, Ed. 2d at 123 S. Ct. at legitimate 1040. A race-neutral reason is not a reason sense, makes but a reason that does deny equal protection. Purkett, 769, 514 U.S. at 840, 131 L. Ed. 2d at 115 S. Ct. at 1771. We determine, must by examining record, whether the trial court’s factual determination —that plaintiffs offered valid race-neutral reasons for excluding the five venirepersons Africa-American —was clearly Hernandez, erroneous. 364-66, 500 U.S. at 114 L. Ed. 2d at 408-10, Ill 1868-70; Andrews, S. Ct. at 155 Ill. 2d at 293-94.

A. Larry Stewart considering When venireperson Larry the defendants stated that used a peremptory challenge him exclude because when the questioned panel about whether 48 dollars, “nodding his head a Stewart was

they could award million out of his mouth.” yes, yes, yes, yes before the even upon his observations attorney challenged Stewart based a has been found to be note that while demeanor of Stewart. We challenge exercising peremptory for a legitimate race-neutral reason (the (Rice, prosecutor’s L. Ed. 2d 126 S. Ct. 969 163 demeanor, challenge juror based on her grounds given be judge, were sufficient will although not witnessed closely reasonable)), must be explanations such deference where has Supreme 2d 327. The Illinois Court Easley, 192 Ill. scrutinized. subjective assessment person’s demeanor is recognized that a may easily be scrutiny perceptions such given close because should be Williams, Ill. 2d v. 209 People for discrimination. pretext used as a (1995). Ill. (2004), Wiley, v. 2d 274-75 citing People excluding veni explanation for reviewing proffered judges to what we must eyes to close our reperson, we “are not (1996), Randall, Ill. perceive as men.” 48, 63, 202, 208 129 N.E. 230 N.Y. quoting People Knapp, demonstrates determine whether the Courts must also “specific bias” related venireperson exhibited that the excluded party race with a that his or her shared other than particular Andrews, Ill. 2d at 293. party. him or her favor of may bias head when nodded his Here, counsel stated that Stewart defense awarding damages. We attorney asked the venire about plaintiffs’ dire, jurors that, all the during voir that the record establishes note shaking heads. nodding or their were observed (Mark prospective first 12 First, questioning the while McCannon, Sean Mc- Craig, Deanne Baker, Cahill, Elizabeth Patricia Mariano, Young, Robin LaBranche, Whitney, Chris Donald, Jodi John Hurtado), including Holmes, Kanaga, and Claudia Pawel Sharonda Hurtado, Holmes, who served on LaBranche, Cahill, McDonald, by the following question asked the these jury, attorney: *** you’ve evenly before out Both sides start “MR. ROGERS: any of the evidence? heard down.)” (Nodding up head VENIRE: PROSPECTIVE (Irene prospective of 12 the second set questioning While Sietsema, Jennie Riley, Michael Sinde, Jr., Raymond Correa, Matthew Richmond, Mary Fairchild, Hervai, Corrine Blameuser, Patricia Lois Walter), Strotman, and James Mary Hynes, Quarles, Joseph Ella Strotman, who Sietsema, Hervai, Quarles, and Correa, including by following questions asked the jurors jurors, these served as attorney: Rogers, Mr. *** you Judge

“MR. And ROGERS: all of can follow the law gives you disagree if you Devlin it to even with the law? heads.)

(Nodding Anyone any problem have with that? heads.)

(Shaking And, lastly, it, you if the supported law and evidence could all of sign many you a verdict form for of dollars if feel it’s fair millions compensation and reasonable for the death in this case? heads.)”

(Nodding Then, Lura, Mr. attorneys, following one of the defendants’ asked the questions: you. Sinde, well,

“MR. get you, LURA: Thank Mr. before I opposite question Rogers exact you, that Mr. asked each of there’s here, no tragedy there’s a if plaintiff but does not prove prove death, their case or physicians that the caused anybody going here to be tragedy they so overwhelmed family won’t be able to send money home with no at all? heads.)

(Shaking you sign Will be able to verdicts behalf of the doctors and the hospital? heads.)

(Nodding Anybody problem have a with that? heads.)

(Shaking Okay.” No? (Robert

Finally, the third group of 12 prospective jurors Blafka, Raymond Davies, Carmen Santiago, Barbara Murray, Nora Ruiz, Ramon Larry Bowman, Latonya Jr., Barry, Ruben Or- Sims, Nicolosi, lassia Carol Roger Seals), including Blafka and Davies, jurors, who served as were asked the following questions by the court: *** “THE Okay. COURT: If prove over here their

case, plaintiffs prove case, you their do any any have hesitation signing plaintiffs? Any verdict favor of the hesitation at all? heads.)

(Shaking prove If anyone any fail to their would have hesitation to signing a verdict for the defendants over there? heads.)

(Shaking Okay. Now, again, damages. say let’s talk about You heard me morning jury basically that the has three broad decisions to negligence, harm, make: there negligence Was did that cause if did, it damages going be, are the damages basically being what fair and compensation. Anybody any problems reasonable have that, here in terms of if it comes to awarding monetary damages? Anybody any have problems it? heads.)

(Shaking anybody any in their mind which Does have set amount above they go? Anybody can never in terms of that? heads.)

(Shaking Now, right. again, plaintiffs All that show that there let’s assume injury they injury here to caused but failed show that that was negligence part on the of defendants. any you any signing 12 of have hesitation in Would though verdict in favor of the defendants even it would mean the uncompensated? Anybody? would leave this courtroom heads.)” (Shaking simply panel responded Our of the record reveals that the review court’s, plaintiffs’ questions by to the and defendants’ counsel’s nod ding shaking their heads. note that such nonverbal actions were or We damages, routinely during that questions not limited to the but questioned group, there were venirepersons voir dire when were including response”1 “laughter.”2 “no and nonverbal answers verbal only that establishes that Stewart was not the We note record jurors, that all 36 juror who nodded or shook his head. We also note white, who were black and nodded or shook their heads when answer Finally, importantly, and we note that ing group questions. most nodded or shook attorneys defendants’ did not excuse white who response questions their heads in asked of the entire venire. that when counsel Specifically the record establishes Cahill, McDonald, Correa, Irene Michael questioned Patricia Sean Sietsema, Hervai, Strotman, Mary venirepersons selected Lois by nodding damages, jurors responded these jury, sit on the about Indeed, attorneys argument, heads. oral their response venirepersons also nodded their head admitted white However, defendants’ at- damages. to the same about venirepersons who nodded challenge did not or exclude white torneys find damages. We response questions their heads in about or shook pretextual to be excluding Stewart the defendants’ defendants did not chal- equal protection because the denial of asked the jurors who nodded their heads when lenge or exclude white anyone any training any medical 1“[Defense Counsel:] Does have they type mentioned before? haven’t (No response.)” verbal gather please right. Okay. You folks in the box 2“THE COURT: All yet, you you been called up your belongs those of who haven’t [sic] and coming. know what’s

(Laughter.)” instead, damages; white who nodded questions same about permitted jury. their heads to serve on the the defendants We also note that the trial court found race, black, Stewart, excluded Sims and not because of their damages,” but because of their “attitudes toward which the court jurors, found to be race neutral. the fact that all the black and Given white, group question asked a nodded or shook their heads when damages, they about we have to assume that all had the same attitude engaged all in the damages toward because the record establishes Comparing excluding same conduct. the defendants’ rationale for head, who nodded his the defendants’ rationale applying jurors, to the white permitted who also nodded their heads but were race, jury, jurors’ to serve on the establishes rather than the at- that damages, determining jurors titudes toward was factor which challenged the defendants jurors permitted which the defendants jury. Dretke, to serve on See Miller-El v. L. 196, 221, Ed. 2d 125 S. Ct. (“Comparing his strike panel with the treatment of expressed members who similar views supports a significant conclusion that race in determining was who not”). challenged was and who was

In light of the fact a person’s may easily demeanor be used as a pretext (Wiley, 274-75), for discrimination Ill. 2d at defendants’ attorneys Stewart, along should have asked jurors, with the other questions meaning about the nodding his head order to make a record that could be In by failing reviewed this court. addition to to make a by questioning record nodding, Stewart about his head record does not establish specific that Stewart exhibited a bias related Andrews, to this case. See 155 Ill. 2d at 293. Plaintiffs’ ques counsel’s tion and the court’s they to the venire about whether could award a million dollars in damages inquiry was not an that asked the venire to make an plaintiffs’ damage assessment of the case. The questions, by plaintiffs’ court, attempt counsel and the were an jurors determine whether the any trepidation would have about mak ing award, damage million dollar they not whether would find in Conversely, although tragedy case, favor. there this attorneys’ the defendants’ questions questions and the court’s designed jurors to determine if the judg would be reluctant to enter a ment plaintiffs for the defendants if All prove failed to their case. jurors questions nodding answered these by shaking or their heads. result, As a venirepersons we do not believe that or the Stewart white case, who any type nodded their heads exhibited bias related to this jurors because the same response nodded or shook their heads in questions by the attorneys and the court. conclusion, given the fact that the record establishes that black jurors by questions

and white nodded their heads when asked court, counsel, and defendants’ believe that we excluding pretextual, defendants’ reasons for Stewart were and hold finding primarily the trial court’s the defendants were —that jurors’ damages concerned about the black attitudes about —was clearly finding erroneous. We also hold that that the the trial court’s excluding venireper- defendants offered a valid race-neutral reason for clearly son Stewart was erroneous because the record establishes engaged jurors Stewart in the conduct same as white who were challenged jury. Finally, venireperson or excused from hold equal protection Stewart was denied of the laws because he was treated jurors the record not establish differently from white because does damages specific that Stewart exhibited a bias toward that was not permitted their heads but were exhibited white who nodded jury. to serve on the

B. Orlassia Sims Sims, the defendants’ at- considering When venirewoman Orlassia challenge exclude torneys stated that used their because, like she nodded her head when her from the awarding damages and in defense plaintiffs’ counsel asked about proceedings. in the opinion appeared counsel’s she to be disinterested their heads The record establishes that black and white nodded find, in that head questions damages. when asked about We alone, reason for nodding, standing was not a valid race-neutral Sims, excluding juror, jury. from this a black Now, that Sims was perception to the defendants’ we turn counsel stated that he was proceedings. disinterested in the Defense during pay be motivated to attention concerned that Sims would not a conduct or nodding, head disinterestedness is form of the case. Like for legitimate a race-neutral reason may demeanor that be considered Gray, App. 326 Ill. 3d peremptory challenge. People a v. the exercise of Johnson, 3d 986 (2001), App. 218 Ill. citing People 912 (1991). However, subjective is a nodding, head disinterestedness like scrutiny to because required give close assessment that the court pretext as a for discrimination. may easily be used perceptions such Williams, 245; Wiley, Ill. 2d at 274-75. 209 Ill. 2d at 165 See (2001), Ill. 3d 906 Gray, App. cite

The defendants reason disinterest is a valid race-neutral support position their in Gray find the facts jury. We excluding person for hearing in At the Batson the facts this case. distinguishable from challenge to explained that he used Gray, prosecutor venirewoman because exclude an African-American being as she was checking her watch process selection she was 326 Ill. looking Gray, the courtroom. questioned and she was around that the venirewoman prosecutor at The also stated App. 3d 912. Gray, App. 326 Ill. that she lived at a senior citizen home. indicated nursing that the home was not a normal prosecutor at 912. The stated may have some home and he was concerned that the venirewoman Gray court found type disability. Gray, 3d at 912. lack of interest was that it was irrelevant whether venirewoman’s inat of her disability prosecutor’s due to a because excluding Gray, her. a valid race-neutral reason for tentiveness was Ill. App. 3d at 912. case, Gray, attorney In this unlike the defendants’ did not make reasonably specific explanation of by providing record a clear and In perceived Gray, what he to be Sims’ disinterested behavior. kept looking prosecutor explained on the record the venirewoman being questioned kept looking at her watch and that she around while case, however, attorney the room. In this the defendants’ made no at tempt explain on the record to conduct that he believed specific Here, proceedings. demonstrated that Sims disinterested in the Again, simply defense counsel stated that she seemed disinterested. given scrutiny we note that conduct and demeanor must be close perceptions pretext because such as a may easily be used Williams, 245; Wiley, discrimination. See 209 Ill. 2d at 165 Ill. 2d at attorney 274-75. failed to make a record provided reasonably specific description which a clear and of Sims’ in the behavior that he believed demonstrated Sims’ lack of interest Batson, n.20, n.20, L. Ed. 2d at 88 106 S. Ct. at case. at support 1724 n.20. find that the record fails to the defendants’ We torney’s excusing juror race-neutral reasons for Sims as a the case. of the Accordingly, equal protection hold that Sims was also denied because, differently from laws like Sims was treated white dam answering questions who nodded their heads when about defendants, ages jury by the permitted but were to serve on the any being disinterested record failed to reveal evidence case.

C. Norma Collins Next, proffered the defendants’ race-neutral reason for we review Collins. using peremptory challenge to exclude venirewoman Norma because, Collins like attorney Defendants’ stated that he excluded Sims, plaintiffs’ counsel asked Stewart and she nodded her head when damages. attorney Defendants’ also stated that Col- panel about lins was excluded because she indicated that she was in involved compensation worker’s case injury job for an she sustained on her defense perceived thought counsel that Collins posi- lawsuit was a thing. tive Defense perceived counsel stated that he Collins to be a litigious person. The record establishes that when asked whether she lawsuit, had party ever been a to a party Collins stated that she was a compensation stated, to a worker’s judge case. The trial then “One thing everybody should understand is that compensation the worker’s system totally rules, is different than this. It has different different regulations, structure, totally different different.” judge The trial said to you just forget that[?]” “So can about and Collins responded “yes.”

In merely stating our review of the record—with Collins that she party compensation was a to one worker’s lawsuit —there were no statements in the record Collins that indicated that Collins took pride being party in her compensation worker’s lawsuit. Dr. Ked dington’s attorney’s being conclusion that Collins party considered positive thing to a lawsuit a subjective is a assessment of Collins based upon previously regard her conduct or demeanor. As discussed to venirepersons Sims, given Stewart and conduct and demeanor must be scrutiny perceptions may close because such easily pretext be used as a Here, Wiley, for discrimination. 165 Ill. 2d at Dr. 274-75. we note that Keddington’s counsel did ask any questions Collins additional perceptions about his her provide statements and he did not a clear reasonably specific explanation perceived of her conduct that he thought being party something to indicate that she to a lawsuit was to be if proud thought positive party of. Even Collins it was to be a to a lawsuit, compensation worker’s defense counsel failed to articulate against that had a specific how established Collins bias Andrews, present defendants in the case. See 155 Ill. 2d at 293. “Litigious” prone engage means to in lawsuits. See Black’s Law (5th 1979). Dictionary 841 ed. We do not believe Sims’ involve litigious person. ment one lawsuit makes her a We believe that person argument litigious pretex defense counsel’s that Collins is a only tual because she had been and there is involved one lawsuit nothing in the statement that Collins support record counsel’s thing. her in that participation positive considered lawsuit be Sims, Moreover, we find that as was the case with Stewart and Col excluding nodding lins’ head was not a valid race-neutral reason for jury by doing equal protection her from the so she was also denied Accordingly, attorneys of the laws. we find that the defendants’ failed excluding or provide a race-neutral reason for Collins in this exhibited a bias toward the defendants established Collins case. proffered that the defendants’ in this I hold summary, Collins, excluding Sims and reasons note importantly, we pretextual. More venirepersons,

three black for exclud reviewing proffered race-neutral that when “ eyes judges to what [may not] ‘we close our ing venireperson, ” 1026, quoting Randall, Ill. 3d at as men.’ 283 perceive we must proffered the defendants’ Knapp, 230 N.Y.at 63. Because Stewart, equal and Collins they are denied Sims pretextual, reasons jurors excluding the three black protection by purposefully of the laws 839, Purkett, 768, L. Ed. 2d at 115 S. Ct. jury. 514 U.S. at 131 Furthermore, attorneys’ explanations do at 1771. Collins, Stewart, venirepersons, the excluded establish that Sims and Andrews, 2d The in 155 Ill. at 293. specific exhibited a bias this case. purposeful in discrimi they engage defendants maintain that did not challenges against nation did not exercise because argu jury. the three black that served on the The defendants’ minority ment lacks merit because the exclusion of even one venire person requires race is reversal of the because of unconstitutional Harris, Andrews, 294, citing case. Ill. See 2d at (1989). 123, 2d involving litigants In trials from different ethnic groups, compelling governmental or racial there is a or state interest otherwise, in having jury; litigants equal a diverse are denied 323-25, protection 306, of the Bollinger, laws. Grutter v. 539 U.S. (2003).3 304, 329-30, L. Ed. 2d Accordingly, 123 S. Ct. 2336-37 trial, we reverse and remand because this case for a new but reverse finding plaintiffs prove the trial court’s that the did not engaged purposeful against defendants discrimination the black jurors, Sims, clearly Larry Orlassia and Norma was of litigants equal protection erroneous and denied the black the laws. (2005)

III. IPI Civil No. 12.05 address this issue already While we have reversed this we trial court. The may up again because it come on retrial plaintiffs providing argue that the trial court erred (2005) IPI there no credible evidence Civil No. 12.05 because was 3“ guarantee thing ap equal protection ‘The cannot mean one when plied something applied person of another to one individual and else when to a protection [given opportunity color. If an both are not accorded the same ” Grutter, L. Ed. jury], equal.’ serve on the then it is not 539 U.S. at 2336, quoting Regents University 123 S. Ct. at California Bakke, 289-90, 750, 770-71, 2747-48 57 L. Ed. 2d 98 S. Ct. presented at trial which would argument allow for an that a pneumothorax proximate was the sole cause of Ms. Warren’s death. The maintain that the cause Ms. of Warren’s death was peritonitis (2005) resulting negligence. from the defendants’ IPI Civil No. provides 12.05 as follows: you

“If decide negligent [the] defendants] [were] that a was negligence [their] that his proximate injury was a cause of to the plaintiff, it is not a something may defense that else also have been injury. cause of the

[However,if you decidethat proximate injury the sole cause of plaintiff something was other than the conduct of the defendant, your then verdict defendant.]” should be for the IPI Civil No. 12.05. plaintiffs argue

The that the instruction improper because the presented evidence at trial established that Ms. Warren suffered from pneumothorax that occurred after she suffered a cardiac arrest. The plaintiffs argue that the evidence demonstrated that Ms. died Warren peritonitis, as a result of which caused her cardiac arrest. argue plaintiffs’ argument defendants that the misapprehends Cook,

the law. The defendants cite to County App. Nassar v. 333 Ill. of (2002), 3d 297 support position long to their that as jury as the provided was competent with some evidence that someone or something other than the injury defendants’ conduct caused the at is sue, proximate then the sole cause instruction was proper the trial court’s give refusal to it would constitute reversible error. The argue defendants that there competent presented was evidence at trial proximate warrant a sole cause The instruction. defendants note Anderson, that Dr. Keddington, expert Fitzgibbons Dr. and defense Dr. testified that the peritonitis cause of Ms. Warren’s death was not but pneumothorax result, resulting cardiopulmonary and the arrest. As a (2005) properly the defendants maintain that IPI Civil No. 12.05 was given jury. to the trial,

In jury party right jury clearly each has the to have the fairly upon theory by instructed each supported which was the Cook, (2002), County App. evidence. Nassar v. Ill. 3d 297 of citing Loyola University Leonardi v. 168 Ill. 2d Chicago, (1995). The sole proximate requires cause instruction that there be McDonnell, justify giving some evidence to the instruction. 192 Ill. 2d 515; Nassar, at Ill. It the App. see also 3d at 297. is within circuit court’s discretion to determine what issues are raised evidence Nassar, given. App. and whether an instruction should be 333 Ill. M., citing Nancy In re 317 Ill. 3d 167 test for determining propriety of tendered instructions is whether the as to the relevant informed comprehensively fairly, fully, was Leonardi, entirety. in their considering the instructions principles IPI Civil long form of that the on use indicate The notes Ill. 2d at 100. tending (2005) there is evidence “where only appropriate is No. 12.05 something was the occurrence cause of proximate the sole to show that 12.05, No. IPI Civil defendant.” the conduct of the other than only to rebut right “A has Use. defendant Notes On negligent and acts are that defendant’s tending to show evidence right to endeavor also has the injuries, but proximate cause of claimed person, third of a that the conduct by competent evidence establish plaintiff s factor, proximate cause is the sole other causative or some sufficient, is entitled the defendant Further, if the evidence injuries. Leonardi, 2d at 101. theory.” on this to an instruction any there was record to determine whether must review the We proximate that the sole trial tends to show presented at which evidence something other than the conduct death was cause of Ms. Warren’s Dr. Ked- 12.05, On Use. Judith a if had not had tension arrest she cardiopulmonary sustained expert defense reveals that Additionally, the record pneumothorax. surgeon and general Fitzgibbons, a board-certified Dr. Robert witness Ms. Warren testified that Creighton University, professor surgery claimed, a result of but as peritonitis, did not die of cardiopul- May 9 and led that occurred on pneumothorax tension death. monary arrest and brain indicates that four at trial testimony presented

Our review of witnesses testified that there was a causative factor other than peritonitis may proximate have been the cause of Ms. Warren’s death. Specifically, defense Dr. Fitzgibbons, Anderson, witnesses Dr. and Dr. Keddington testified that the cause of Ms. Warren’s death was peritonitis but pneumothorax and the resulting cardiopulmonary arrest. In record, our review of the presented defendants sufficient competent evidence to justify the trial giving court the instruction. Ac- cordingly, the trial court did not abuse its discretion when IPI Civil (2005) No. 12.05 given to the jury. Judgment

IV Notwithstanding the Verdict light of our decision to remand this case for a new trial because violation, of the Batson we need not reach argument final that the trial failing court erred in grant judgment notwithstand ing the verdict. R.W. Inc., Dunteman Co. v. Enterprises, 181 Ill. 2d C/G (1998) (it 153, 168 is not necessary to reach the merits of the arguments other in light remand); Pietruszyn see also ski v. Corp., Inc., McClier Engineers, Architects & 3d

V Conclusion reasons, For the foregoing the judgment of the circuit court is reversed and this matter is remanded to the circuit court new trial.

Reversed and remanded. QUINN, PRESIDING JUSTICE specially concurring: I agree with Justice Neville that we must reverse this matter and remand it for new trial based holding Kentucky, on the in Batson v. (1986), 90 L. Ed. 2d 106 S. progeny. Ct. 1712 and its base ground this decision on a different from that found by Justice Neville. I believe that the trial court applied faulty analysis factual when considering plaintiffs challenges. Batson

“[A] trial third-stage finding court’s on ultimate issue of discrimination largely credibility rests (Emphasis determinations.” in original.) Rivera, 221 Ill. 2d at citing McDonnell v. McPartlin, 192 Ill. 2d at 527. Where the record indicates that the trial judge appropriately explanation, scrutinized judge’s counsel’s the trial credibility determination as to counsel’s great is entitled to deference. McPartlin, McDonnell v. 192 Ill. 2d at 529. Martinez,

In People (2000), Ill. App. this court distinguished the different considerations the trial court must take into account third steps process: second and of the Batson the validity [of the facial court focuses on step, “At the second the step, third the court striking juror]. the At the for proffered reason At of the reason. genuineness the persuasiveness must evaluate proffered the reason just accept cannot step, third the court this the of the case.” evaluating against it circumstances without the it not determine whether The Martinez'court held that could excusing juror a was peremptorily black expressed State’s reason for that at the pretextual. This the trial held the issue was because court “ validity facial of the step process third of the ‘the Batson was prosecutor’s discriminatory a inherent explanation. Unless intent is race prosecutor’s explanation, the the reason offered will be deemed *** case, race- gave In the court finds that the State neutral. excluding Miss ***. Court purposes neutral reasons for Lee [sic] *** error in manner of The trial court’s finds no the selection.’ only second-step that it the evalua completed comments demonstrate Although it pursuant tion to Batson. the trial court stated conducting third-step analysis, it is clear that the court did not omitted.) Martinez, step.” (Emphasis People fact conduct the third v. at App. 317 Ill. 3d 1045. similarly

The statements of the trial court in the instant case only completed second-step pursuant reflect that it had evaluation to Batson. rejecting plaintiffs’ attorney’s assertion that Batson, use of peremptory challenges

counsel’s was violative of Sims, Mr. “[I]n court said: terms of Ms. and Ms. damages, concerns seem to their attitudes which I believe is be toward reason, willing a no race neutral so on basis I’m hold there was Batson violation here.” stated argued

After counsel that defendants’ counsel’s they juror’s strikes peremptory reasons that based their fact, had no said: demeanors trial court basis Well, jurors. “THE We all noticed COURT: we’vealso seen have body body language people. language favor- Sometimes that to us it’s able and sometimes not. attorneys. I’m going veracity

I’m not here simply saying far as I’m concerned there are race neutral that as. and, excused, therefore, why people for I’m not reasons these were going challenge.” to sustain the Batson prospective juror’s It demeanor is well settled that courtroom excluding for may legitimate reason constitute (1993); v. Andrews, People individual. 155 Ill. 2d However, subjective Ill. 2d Young, 128 because such exercising pretext, for strike lends itself to explanation such an closely must be scrutinized. McDonnell v. McPart lin, 192 Ill. 2d 528.

In the instant the record demonstrates the trial court did not “closely scrutinize” proffered defendants’ counsel’s explana- tions, rather, but the trial merely accepted court their explanations because based on race.

When occurring during faced with a similar error step third process, the Batson this court has reversed and remanded cases the trial tinez, proper court to conduct a Batson See analysis. People v. Mar 1046; App. People Davis, 3d at Ill. at 911- 12. Those cases involved allegations peremptory challenge that one pointed was exercised inappropriately. Neville, As out Justice by while peremptorily veniremen, the defense only excused five three of these peremptories really problematic. Further, are while Justice Neville excusing finds that venireperson pretextual, Norma I do Collins was not. I believe that defense rights counsel were well their to within having excuse Ms. Collins based previously on her filed a worker’s compensation proffered they claim. Defense counsel that excused veni Larry Orlassia Sims and their having Stewart due to raised repersons they their hands asked could a in when whether return verdict excess million find $1 should the defendant doctors for liable decedent’s death. Justice fair points reading Neville out that a of the record all potential reveals that the in veniremen raised their hands response question. Consequently, to this the offered reason for excus ing Sims and support large Stewart —that indicated for a dam ages distinguish award in the case—would not those two from rest of I agree the the venire who were selected. with Justice Neville point, this I do sufficiently on but not that the record is believe clear by find pretextual. to that the reasons stated defense counsel However, I do believe that the trial court’s statement that “I’m not going veracity the of the off attorneys” effectively here cut Considering discussion of the bases for the strikes. the retired, judge agree fact that the trial court since I that has remand McPartlin, ment at inappropriate. would be McDonnell v. 192 Ill. 2d I Consequently, agree 528. we must this matter reverse remand it for a new trial. the trial error in is believe that court’s this case understandable Supreme

considering contradictory language by the utilized the Court applying explained by supreme People in As our own court in Batson. (2002): Harris, 1, 2d v. 206 Ill. 17 made, prima prosecu the burden to the “Once a case is shifts facie explanation excusing

tor a the venire to articulate race-neutral for 352, 358-59, York, v. persons question. Hernandez New 500 U.S.

61 (1991); 1859, People v. Wil 395, 405, 1866 111 S. Ct. 114 L. Ed. 2d (1994). 1, stage process, of the liams, 19 At 164 Ill. 2d persuasive, even not be or prosecutor need explanation given 834, 768, 765, 131 L. Ed. 2d Elem, U.S. v. 514 plausible. Purkett one 1769, explanation is 839, A neutral Ct. 1771 S. II, Ill. 2d at 333. Harris reason other than race. based a prosecutor’s is inherent discriminatory intent ‘Unless Her race will be deemed neutral.’ explanation, the reason offered 406, nandez, at 1866.” 359, 114 L. Ed. 2d at S. Ct. 500 U.S. at added.) (Emphasis 104, (2002); Crock Munson, People 206 Ill. 2d See also language. ett, (2000), using the 3d 389 same Dictionary 1736 defines Third New International Webster’s credible; being such as “superficially worthy of belief: “plausible” clearly It is accepted (eg. plausible pretext).” be as real may contradictory need be say prosecutor’s “closely must scrutinize” these same “plausible” but courts explanations. contradictory language highlighted by nature of this Dretke,

language recently by Supreme used Court Miller-El v. 162 L. S. Ct. 2331-32 Ed. (2005); law, provides opportunity

“As rule in Batson an to the prosecutor give striking juror, requires reason for and it judge plausibility light to assess the of that reason in of all U.S., 96-97; bearing evidence v. Cock- on it. 476 Miller-El rell, U.S., peremptories 537 at 339. often the It is true that are U.S., subjects instinct, (Marshall, Kentucky, of v. 476 at 106 Batson J., say concurring), and it can be hard to what the reason sometimes illegitimate issue, prosecu- But in grounds is. when like race are a simply got tor best he and or has state his reasons as can stand plausibility gives. challenge on A the the reason he Batson fall of any in thinking up does not for a mere exercise basis. call rational up, pretextual significance If the reason not hold stated does its judge, court, imagine not or appeals does fade because a trial an can might up (Emphasis a reason been as not have shown false.” added.) attorneys occasionally all surprising

It is not at trial courts and challenges considering in Batson great difficulty addressing have unclear, only it guidance of review is not is given the courts contradictory. MURPHY, dissenting:

JUSTICE or intended respectfully dissent. Whether not defendants

62 discriminate on the of basis race exercising peremptory challenges is a of fact. Because there seldom much evidence this is- sue, the trial court’s largely determination rests on the demeanor and credibility of attorney exercising challenge, the tenor of the dire, voir and the prospective jurors. Therefore, behavior of the we determine, by examining record, must whether trial court’s challenge clearly determination on a Batson Hernan- erroneous. 395, York, 352, 365, dez v. New U.S. 114 409, 500 L. Ed. 2d 111 S. Ct. (1991). 1859, review, 1869 grant Under this standard of we the trial only court deference and overturn its determination if left with a and “definite firm a conviction that has mistake been committed.” Co., United States v. United Gypsum 364, 395, States U.S. 333 92 L. (1948). 766, 746, 525, Ed. 68 S. Ct. 542 “plausible” Where two views of the presented, evidence have been the trial court’s choice of one cannot clearly be erroneous and a court may of review not reverse even if weighed convinced it would differently. have the evidence 564, v. City 573-74, Anderson Bessemer L. City, U.S. 84 Ed. 2d (1985). 518, 1504, 528, 105 S. Ct. supreme holding Our has court affirmed the that the exclusion of minority venireperson based on certain accept characteristic while ing venireperson not, a white who shares the same does characteristic itself, pretextual. and of invalidate a as party’s People v. (2004). Williams, 227, 209 Ill. 2d The Williams court continued to highlight challenges that peremptory are on a based combination of possession negative traits. of one additional nondiscriminatory trait over another allows for use proper peremptory challenge. of a Williams, 245-46, 259, citing People Wiley, 2d at Ill. 2d may 282-83 Demeanor alone be suf race-neutral reason ficient, Williams, closely but must be scrutinized. 209 Ill. 2d at 247.

Therefore, demeanor, judge weigh the trial must context atmosphere participants and the courtroom to determine best credibility proffered difficulty of the reason. The inherent an appellate not, cannot, analysis of this issue is that the record does provide full report Although carefully of nonverbal cues. we reasoning party, second-guessing scrutinize of the a determination subjective expressions that is so reliant on and nonverbal must be Dretke, 231, 267-73, L. lightly. done See Miller-El v. 545 U.S. 162 Ed. (2005) J., 196, 230-35, (Breyer, 125 S. Ct. 2340-45 concur- 834-35, Ed. 2d ring); Rice 163 L. J.). J., Souter, (Breyer, joined by S. concurring, Ct. 976-77 subject, import The obvious social constitutional place of the and trust in difficulty subject, the deference and we must just a are in ten- properly the trial court to determine result serious for an and reason Determining articulating the motivation sion. may impos- challenge be instinctive decision to exercise reviewing challenge, much utilizing less attorney sible for the racial, upon impermissible may rest factors that court. Subconscious unknowingly at stereotypes may be gender-based ethnic or religious, analysis utilizing competing very challenging The result is a play. may to something impossible that be review to determine standards of record. much less via a cold in accomplish person, truly Quinn that event, agree first Justice any in this I with pretex- not Collins was challenge venireperson defendants’ Norma filed a having Collins of her on the basis challenged tual. Defendants that her demeanor their belief compensation worker’s claim and This litigation damages. favorable attitude toward exhibited a venire and was suf- apart set combination of traits Collins challenge. The trial court’s denial of ficient to Batson withstand clearly to Orlassia challenge respect this was not erroneous. With Larry Stewart, generally indicates that Sims and record nodded, ques- in certain laughed response and raised their hands potential of all highlights consequence tions. Justice Neville that the answering distinguish did Sims and same fashion not disagree I do with his find- counterparts. from their not Stewart white ing reading all members of the that a fair of the record indicates that group responded in the same fashion.

However, specifically high- the challenges of Sims and Stewart ques- lighted body language way each answered the which wary body language, Defendants which tions. Stewart’s Sims, strong support large damage felt indicated a claims. As for that she and would not be a defendants believed acted disinterested good, juror. active Quinn trial “I’m agree Justice court’s statement with attorneys,” here is a concern. going veracity

However, overcome the may interpreted I do not be believe on evalu pay dependent must the trial court issues so deference we credibility. I believe that participants’ ations of the demeanor tongue oversimplification slip trial court’s comment was a of the —an plausible and cred reasons were finding of its that defendants’ stated may be stock answers Although many ible. race-neutral answers over, thereby making process the Batson attorneys use over and “charade,” they accepted proper nonetheless have been Randall, App. 1025-26 See reasons. be race neutral and most properly The trial found the reasons to court belief them was credible. importantly me and firm have not left definite The facts of this case conviction that a mistake was made the trial court. The cold record cannot credibility overcome the determination made the trial court. way We no knowing have the manner in which the participants nodded their heads or raised their record, hands. From the we not do they know if or slouching looking or excitedly sup- around bored porting large damages. the idea of

We do know that defendants felt that both Stewart’s and Sims’ body language demeanor and indicated a mindset did not find to their favorable clients. doWe know that defendants felt that also body Sims’ language general and demeanor indicated a in disinterest proceedings. The trial court attorneys was able observe the the venire. The trial court concluded that the defendants’ race-neutral explanations explanations plausible. were credible. These are Therefore, I find trial would court’s denial of Batson challenge clearly was not erroneous.

Until such time as the picks court or until are there no juries cases, likely in civil there will be in resolving questions conflict prejudice I jury selection. do not know if Justice Breyer’s asser challenges tions that peremptory abandoning are unworkable merit system the current is another place but, another —that system — remains, present while the agree Gallagher’s with Justice Randall, conclusion in J., 3d at (Gallagher, 1030-31 concurring part dissenting part): the trial court should second-guessing attorney’s face the unenviable burden of an use peremptory challenges facially when a reason for valid exclusion has been exercised in a credible fashion. JOYCE, al.,

TIMOTHY Plaintiff-Appellant, v. JAY J. MASTRI et Defendants-

Appellees. (4th Division) First District No. 1 — 06—0086 January Opinion filed 2007. IPI Civil Notes the defendants. See examined Ms. surgeon, testified that she dington, a board-certified She noted an her condition to be stable. May 8 and found Warren and ordered an infec- blood cell count increase Ms. Warren’s white intravenous Keddington Dr. also ordered disease consultation. tious Dr. Ked- nutrition, administration and antibiotics. an increase fluid very this time showed low gases that blood drawn at dington testified ultimately went Ms. Warren oxygen poor levels and blood circulation. portable that a Keddington arrest. Dr. testified cardiopulmonary into suffered a “tension rayX that Ms. Warren had chest showed lungs out of the and ac- occurs air leaks pneumothorax,” which when pushes It and cardiac arteries. chest around the heart cumulates veins, blood from preventing collapses heart to one side and pumping blood the heart from returning preventing to the heart and organs. other plaintiffs’ expert Teas, pathologist and Dr. Shaku a forensic perition- for Ms. witness, that the cause of death Warren testified cross-examination, Dr. Teas On perforation itis due to of the stomach. would have say Ms. Warren testified that he could not whether

Case Details

Case Name: MacK v. Anderson

Court Name: Appellate Court of Illinois

Date Published: Dec 28, 2006

Citation: 861 N.E.2d 280

Docket Number: 1-04-1477

Court Abbreviation: Ill. App. Ct.