Fleming v. Moswin, No. 1–10–3475.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Justice ROCHFORD delivered the judgment of the court
• Citation: 364 Ill.Dec. 169,976 N.E.2d 447
• Decision Date: 13 August 2012
• Docket Number: No. 1–10–3475.
• Parties: Laurensa FLEMING and Lorenzo Weaver, Special Co–Administrators of the Estate of Lawrence Fleming, Jr., Deceased, Plaintiffs–Appellants, v. Arthur MOSWIN, Hyde Park Associates in Medicine, Ltd., a Corporation, and Mark Schacht, Defendants–Appellees (Roberto Ramirez, Defendant).

976 N.E.2d 447
364 Ill.Dec. 169

Laurensa FLEMING and Lorenzo Weaver, Special Co–Administrators of the Estate of Lawrence Fleming, Jr., Deceased, Plaintiffs–Appellants,
v.
Arthur MOSWIN, Hyde Park Associates in Medicine, Ltd., a Corporation, and Mark Schacht, Defendants–Appellees (Roberto Ramirez, Defendant).

No. 1–10–3475.

Appellate Court of Illinois,
First District, First Division.

Aug. 13, 2012.

[976 N.E.2d 450]

Margaret M. O'Leary, Chicago, for appellants.

Lowis & Gellen, LLP, Chicago (Deborah M.R. O'Brien, Michael A. Code, and Jamie A. Leavitt, of counsel), for appellees Arthur Moswin and Hyde Park Associates in Medicine, Ltd.

Pretxel & Stouffer, Chtrd., Chicago (Robert Marc Chemers, Brian T. Henry, and Christine J. Iverson, of counsel), for appellee Mark Schacht.

OPINION
Justice ROCHFORD delivered the judgment of the court, with opinion.

[364 Ill.Dec. 172]¶ 1 This matter is now before this court for the second time. Plaintiffs-appellants, [364 Ill.Dec. 173]

[976 N.E.2d 451]

Laurensa Fleming and Lorenzo Weaver, special co-administrators of the estate of Lawrence Fleming, Jr., deceased, initially brought this medical malpractice action to recover damages following decedent's death of bladder cancer in 2004. A directed verdict was entered in favor of defendant Roberto Ramirez, M.D., and—following a jury trial—judgment was entered in favor of defendants-appellants, Arthur Moswin, M.D., his employer, Hyde Park Associates in Medicine, Ltd., a corporation (collectively, Dr. Moswin), and Mark Schacht, M.D. Plaintiffs appealed, contending that the trial court improperly denied their posttrial motion for a new trial because: (1) Dr. Schacht exercised a peremptory challenge against a prospective juror in violation of the principles espoused in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) evidence was admitted at trial in violation of both the Dead–Man's Act (735 ILCS 5/8–201 (West 2008)) and the general rule against hearsay.

¶ 2 In our original order, we found that there had been an apparent failure on the part of the trial court to conduct a proper Batson analysis. Fleming v. Moswin, 2012 IL App (1st) 103475–U. We, therefore, retained jurisdiction over this appeal and remanded this matter to the trial court for the limited purpose of allowing the trial court to conduct a proper Batson analysis and to file amended findings of fact and conclusions of law with this court. Id. ¶ ¶ 45–46. Pursuant to that order, the trial court has now filed an “Order on Remand” in which it found that a Batson violation did indeed occur during jury selection and, therefore, plaintiffs' motion for a new trial should now be granted. Additionally, all parties on appeal have also filed supplemental briefs in accordance with our prior order. Id.

¶ 3 For the following reasons, we affirm the trial court's initial denial of plaintiffs' posttrial motion for a new trial.

¶ 4 I. BACKGROUND

¶ 5 Because some of the relevant factual background was fully set out in our prior order ( Fleming, 2012 IL App (1st) 103475–U, ¶¶ 4–17), we recite here only those facts necessary for our consideration of the matters now pending before this court.

¶ 6 In their pleadings, plaintiffs generally alleged that the named defendants were involved in the evaluation and treatment of decedent's complaints of a host of urinary difficulties and related issues throughout 2002 and 2003. Plaintiffs alleged that as a result of various acts of negligence on the part of defendants, the diagnosis of decedent's bladder tumor was significantly delayed, and this delay contributed to decedent's death from metastatic bladder cancer in August of 2004.

¶ 7 The parties' discovery disclosures reveal additional detail about the issues and evidence to be presented at trial. Plaintiffs intended to present evidence, including expert opinions, establishing that decedent was evaluated by an internist, Dr. Moswin, in 2002 for complaints of urinary frequency and blood in his urine, but Dr. Moswin improperly failed to refer decedent to a urologist for more specialized care. They would also attempt to establish that decedent was, ultimately, evaluated and treated in 2003 by a urologist, Dr. Schacht. However, Dr. Schacht violated the standard of care by—among other things—failing to have decedent undergo a cystoscopy to determine the cause of his symptoms. Finally, plaintiffs would produce evidence that decedent's new internist, Dr. Ramirez, failed to properly coordinate the decedent's care with Dr. Schacht in 2003. As a result of all these failures, decedent's bladder cancer was not [364 Ill.Dec. 174]

[976 N.E.2d 452]

discovered until another doctor finally ordered a cystoscopy in late 2004.

¶ 8 In turn, defendants would provide evidence and expert opinions refuting plaintiffs' contentions. Of particular relevance here, Dr. Schacht was expected to present a defense which included evidence that he repeatedly offered to perform a cystoscopy throughout 2003, but decedent consistently refused.

¶ 9 The matter proceeded to a jury trial in December of 2009. Prior to trial, the trial court addressed a number of motions in limine filed by the parties. These included plaintiffs' motion to bar or limit certain testimony regarding Dr. Schacht's care of the decedent.¹ Specifically, plaintiffs indicated that they intended to present evidence regarding Dr. Schacht's failure to order a cystoscopy on any of the many occasions he evaluated or treated decedent between March and November of 2003. They also intended to offer expert opinions that each of these failures constituted a violation of the standard of care, and that the delay in performing this procedure contributed to decedent's death in 2004. However, plaintiffs contended that Dr. Schacht should not be permitted to testify regarding any conversations he had with decedent on these occasions—including any conversations where decedent purportedly refused a cystoscopy—because such conversations were inadmissible pursuant to the Dead–Man's Act. See 735 ILCS 5/8–201 (West 2008) (“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability* * *.”).

¶ 10 Dr. Schacht challenged plaintiffs' motion. He contended that by indicating their intent to offer evidence and opinions regarding each of his meetings with decedent, plaintiffs were necessarily also indicating a waiver of the protections of the Dead–Man's Act by implicating a statutory exception contained therein. See 735 ILCS 5/8–201(a) (West 2008) (“If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.”). Dr. Schacht further cited to a number of opinions applying this exception in similar circumstances. See Hoem v. Zia, 159 Ill.2d 193, 201–02, 201 Ill.Dec. 47, 636 N.E.2d 479 (1994) (applying this exception in a medical malpractice action where plaintiff estate introduced evidence of decedent's interactions with defendant doctor, as allowing the estate to do so without allowing the defendant doctor the opportunity to give his version of events “would not advance the policy behind the Act”); Malanowski v. Jabamoni, 332 Ill.App.3d 8, 13, 265 Ill.Dec. 596, 772 N.E.2d 967 (2002) (same).

¶ 11 After extensive discussion of this motion, the trial court indicated that the exception would apply at trial. Dr. Schacht would, therefore, be allowed to refute plaintiffs' assertions by testifying about his conversations with decedent if plaintiffs first “opened the door” by introducing[364 Ill.Dec. 175]

[976 N.E.2d 453]

evidence regarding the specific occasions when those conversations took place.

¶ 12 The matter proceeded to a jury trial in December of 2009. Jury selection for the trial began with each side being given seven peremptory challenges, with an additional challenge awarded to each side for use in selecting alternate jurors. The defense side split their seven challenges, with four challenges awarded to Dr. Moswin and three challenges awarded to Dr. Schacht. Dr. Schacht used two of his three challenges and, on both occasions, he excused African–Americans. Specifically, Dr. Schacht excused juror No. 13, Ian Okosi, and juror No. 21, Betty Riley. Following Dr. Schacht's challenge to Ms. Riley, plaintiffs raised a Batson challenge to Dr. Schacht's use of peremptory challenges.

¶ 13 The trial court rejected plaintiffs' Batson challenge, and the jury, ultimately, included three African–American jurors with an additional two Caucasian jurors serving as alternates.

¶ 14 After the jury was selected, plaintiffs again raised the issue of Dr. Schacht's testimony regarding his conversations with decedent. Plaintiffs argued that defendants should not be able to argue in opening statements that decedent did not consent to a cystoscopy because no testimony had yet been heard, and the exception contained in the Dead–Man's Act had, therefore, not yet been implicated.

¶ 15 In the context of making this argument, plaintiffs indicated that they were now going to limit their evidence against Dr. Schacht to a single claim that he violated the standard of care by failing to order a cystoscopy the very first time he evaluated decedent in March of 2003. It was uncontested that Dr. Schacht did not recommend, and decedent did not reject, such a procedure on that date. Because plaintiffs would not introduce any evidence regarding Dr. Schacht's subsequent interactions with...