Hunter v. Sukkar

• Decision Date: 15 December 1982
• Docket Number: No. 482-0054,482-0054
• Citation: 111 Ill.App.3d 169,66 Ill.Dec. 848,443 N.E.2d 774
• Parties: , 66 Ill.Dec. 848 Minnie Lee HUNTER, Plaintiff-Appellant, v. Dr. Fred SUKKAR, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 774

443 N.E.2d 774

111 Ill.App.3d 169, 66 Ill.Dec. 848

Minnie Lee HUNTER, Plaintiff-Appellant, v. Dr. Fred SUKKAR, Defendant-Appellee.

No. 482-0054.

Appellate Court of Illinois Fourth District.

Dec. 15, 1982.

John Gadau, Zimmerly, Gadau, Stout, Selin & Otto, Champaign, Assisted by James D. Koerber, Law Clerk, for plaintiff-appellant.

Richard F. Record, Jr., Craig & Craig, Mattoon, for defendant-appellee.

LEWIS, Justice:

Plaintiff filed a complaint against Dr. Fred Sukkar alleging negligence in post-operative care which defendant provided her. The case was heard before a jury in Champaign County circuit court and a verdict was returned in favor of the defendant. Plaintiff's post-trial motion for a new trial was denied. Plaintiff claims error by the trial court on several rulings made during the course of the trial and seeks a new trial.

We affirm.

The issues raised here require only a brief summary of the facts presented at trial. Plaintiff's forearm was severely injured on March 19, 1977. On March 22, 1977, defendant operated on the arm and thereafter continued treatment. Defendant used a surgical technique known as ASIF. It involves using metal plates and screws to join together and promote the healing of bone fractures. The technique was developed in Switzerland and the standards for its use are of a universal character. Plaintiff's arm failed to heal properly which necessitated a further operation which was performed by defendant. When the arm still failed to heal, plaintiff had a third operation which was done by another physician.

Plaintiff apparently did not claim negligence in the surgery itself, but rather, maintained defendant was negligent in his instructions and warnings to plaintiff regarding her returning to work and using the injured arm. Defendant's failure to sufficiently instruct plaintiff allegedly led to the overuse of the arm and its failure to heal properly. Plaintiff called Dr. David L. Becker of Milwaukee, Wisconsin, as an expert witness. Becker testified that he is an orthopedic surgeon licensed to practice in Wisconsin since 1969. He is engaged in a group practice. He had never seen plaintiff before trial. He admitted that his evaluation and testimony regarding defendant's care of plaintiff's injury was done for remuneration. Prior to the present case, Becker had testified in one previous trial. However, he had done other evaluations and given evidence depositions for both plaintiffs and defendants. Between 1976 and 1980, Becker gave between 30 and 50 such consulting opinions. Becker's testimony was based on national standards for the use of the ASIF technique. In his opinion based on such national standards, the warnings and instructions given by defendant to plaintiff regarding the use of her arm were inadequate.

During defendant's closing arguments, the following exchange took place:

"Dr. Becker and Mr. Gadau say this surgery met the standards yet it wasn't very good. They also say it wasn't very good yet it would have worked if there wasn't activity by Mrs. Hunter. They work it both ways because in doing so--and Dr. Becker has an interest in doing so and persuaded to the Plaintiff's--

MR. GADAU: I object. There's no evidence that Dr. Becker has any interest in this litigation.

THE COURT: That's overruled. That's a fair statement." (Emphasis added.)

Defense counsel then continued his closing argument in which course he made the following statements to which plaintiff raised no objections:

"Mrs. Hunter and Dr. Sukkar are bias[ed], interested witnesses. They think they're right. So you take that into account when you listen to them.

I suggest to you that Dr. Becker is bias and interested in this case. Dr. Becker is a professional witness. Dr. Becker testifies all the time. He said I've only testified in court once before today. He has given numerous evidence depositions. * * * So Dr. Becker testifies frequently. He said, when asked him, if it wasn't true from 1976 to January of 1980, a period of more than three and a half years, four years, he had 30 to 50 consultations, but he wanted to be sure that I understood not just in Illinois; that takes him outside. How much does that man practice orthopedics? He is actively engaged in appearing before jurys, and I suggest to you that the other doctor in this case, Dr. Bussey, who spends all of his time practicing orthopedics, who doesn't travel here and there and I don't know where to testify, is a person who doesn't have an interest other than that he wants to say what his opinions are to you and he did. * * * I suggest that you discount and disregard Dr. Becker's testimony. He is a hired gun and he is not worthy of your credit." (Emphasis added.)

On appeal, plaintiff objects to those portions of the above comments to which emphasis has been added and contends they are so improper and prejudicial that plaintiff was denied a fair trial.

"Counsel in the case are officers of the court and owe a duty to the court, to opposing counsel, to the cause of justice and to themselves." (Eizerman v. Behn (1956), 9 Ill.App.2d 263, 286, 132 N.E.2d 788, 799.) "The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel." (Hopwood v. Thomas Hoist Co. (1966), 71 Ill.App.2d 434, 443, 219 N.E.2d 76, 81.) "The closing arguments of counsel must be confined to those matters that are in evidence or admitted and uncontroverted." (Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill.App.3d 656, 661, 315 N.E.2d 63, 67.) "It is not improper for an attorney to question either the credibility or judgment of a witness upon any legitimate ground, but an attorney has no right to indulge in violent or inflammatory language for the purpose of arousing the prejudice and passions of the jury nor to insult or abuse a witness without cause. [Citation.]" Regan v. Vizza (1978), 65 Ill.App.3d 50, 53, 22 Ill.Dec. 89, 91, 382 N.E.2d 409, 411.

Examining the first alleged prejudicial comment, and the ruling upon objection, we agree that the trial court's statement would have been better formulated if it had said, "that's a fair comment" rather than "fair statement" since there is some implication in the latter that the court agreed with counsel's assessment. However, we find the language ambiguous, and the error, if any, was de minimis.

We also find that the substance of the trial court's ruling was correct.

"It is, of course, perfectly proper to comment on the interest that a witness may have in a proceeding, to discuss his compensation but it is not proper to exceed in argument that which was introduced as evidence or that which is a reasonable inference from the proper evidence. [Citations.]" (Department of Public Works & Buildings v. Anastoplo (1958), 14 Ill.2d 216, 222, 151 N.E.2d 337, 341.)

Illinois courts have taken a dim view of counsel impugning the integrity of physicians testifying as expert witnesses. See Mattice v. Klawans (1924), 312 Ill. 299, 143 N.E. 866; Walsh v. Chicago Rys. Co. (1922), 303 Ill. 339, 135 N.E. 709; Ryan v. Monson (1961), 33 Ill.App.2d 406, 179 N.E.2d 449.

The evidence at trial established that Dr. Becker was a medical expert testifying at the behest of plaintiff and received compensation for that testimony. While inartfully worded, the context of the objected to, incomplete remark suggests that defense counsel was only calling the jury's attention to the fact that the witness was potentially biased because he was procured and compensated by defendant. The remark was not improper. Anastoplo.

The balance of the alleged prejudicial remarks occurred six pages later in the transcript and were received without objection. Generally, alleged error in closing arguments to the jury will not be considered on appeal in the absence of a ruling by the trial court as to the propriety of the argument. (Anastoplo.) Plaintiff maintains that her only objection and the trial court's ruling went to all of the alleged inflammatory and prejudicial remarks and that further objections were not necessary and would only have served to prejudice the jury. Since the balance of the remarks must have taken place several minutes after the first objection, and since we find them to be of a different nature than that to which the objection was made, we conclude that counsel had an obligation to raise a new objection.

In the alternative, plaintiff argues that the unobjected-to remarks were so inflammatory and prejudicial that they constitute plain error. If the argument of counsel is seriously prejudicial, the trial court has a duty to inject itself into the proceeding sufficiently to insure that the litigants receive a fair trial. (Belfield v. Coop (1956), 8 Ill.2d 293, 312, 134 N.E.2d 249, 259; Paulsen v. Gateway Transportation Co. (1969), 114 Ill.App.2d 241, 247, 252 N.E.2d 406, 409; Rudolph v. City of Chicago (1954), 2 Ill.App.2d 370, 377, 119 N.E.2d 528, 531).

"[I]f prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process cannot stand without deterioration, then upon review this court may consider such assignments of error although no objection was made and no ruling made or preserved thereon. [Citation.]" City of Quincy v. E. Best Plumbing & Heating Supply Co. (1959), 17 Ill.2d 570, 577, 162 N.E.2d 373, 378.

Plaintiff has compared the closing remarks she objects to here with those in three other Illinois cases where a new trial was ordered because of prejudicial remarks. In Regan v. Vizza (1978), 65 Ill.App.3d 50, 22 Ill.Dec. 89, 382 N.E.2d 409, plaintiff's medical expert was a physician who worked at the hospital where plaintiff sought medical attention and was recommended to plaintiff by the emergency care physician. The physician had previously testified for...