Lawler v. MacDuff

• Decision Date: 25 October 2002
• Docket Number: No. 2-01-1307.,2-01-1307.
• Citation: 779 N.E.2d 311,335 Ill. App.3d 144,268 Ill.Dec. 697
• Parties: Laura LAWLER and Ronald Lawler, Plaintiffs-Appellees, v. Roger MacDUFF; Kevin Jones; Elmhurst Clinic; Elmhurst Memorial Health Systems, d/b/a Elmhurst Clinic; Elmhurst Memorial Hospital; EMH Reference Laboratory; Fred Schmitt; and Indra Shankar, Defendants (Michael Lomont and Associated Pathology Consultants-Gottlieb, S.C., Defendants-Appellants).
• Court: United States Appellate Court of Illinois

779 N.E.2d 311

335 Ill. App.3d 144

268 Ill.Dec. 697

Laura LAWLER and Ronald Lawler, Plaintiffs-Appellees, v. Roger MacDUFF; Kevin Jones; Elmhurst Clinic; Elmhurst Memorial Health Systems, d/b/a Elmhurst Clinic; Elmhurst Memorial Hospital; EMH Reference Laboratory; Fred Schmitt; and Indra Shankar, Defendants (Michael Lomont and Associated Pathology Consultants-Gottlieb, S.C., Defendants-Appellants).

No. 2-01-1307.

Appellate Court of Illinois, Second District.

October 25, 2002.

Rehearing Denied December 3, 2002.

Robert Marc Chemers, Scott L. Howie, Kevin J. Glenn, Pretzel & Stouffer, Chtd., Chicago, for Associated Pathology Consultants, S.C. and Michael Lomont.

Jules R. Cherie, Cherie & Loizzi, Chicago, David A. Novoselsky, Leslie J. Rosen, Novoselsky Law Offices, Chicago, for Laura and Ronald Lawler.

Justice GROMETER delivered the opinion of the court:

Defendants Michael Lomont and Associated Pathology Consultants-Gottlieb, S.C., appeal a judgment of the circuit court of Du Page County entered in favor of plaintiffs, Laura and Ronald Lawler. Following a jury trial, Laura was awarded $3,800,000 and Ronald was awarded $50,000. On appeal defendants seek a new trial or, in the alternative, a remittitur. For the reasons that follow, we affirm.

The instant appeal arises out of a medical negligence action. Plaintiffs alleged that defendants had failed to properly read Laura's Pap smears. As a result, Laura contracted cancer and was subsequently forced to undergo a hysterectomy. Defendants conceded liability, and a jury trial was held solely on the issue of damages. At the time of the trial, only Dr. Lomont and Associated Pathology Consultants-Gottlieb, S.C., remained as defendants. The jury awarded Laura $2,500,000 for pain and suffering, $1,200,000 for the loss of a normal life, and $100,000 for disfigurement. It also awarded Ronald $50,000 on his loss-of-consortium claim. Relevant facts will be discussed as they pertain to the issues that follow.

I. OPINION

Defendants raise six issues in this appeal. First, they contend plaintiffs violated Supreme Court Rule 213 (177 Ill.2d R. 213) by failing to properly disclose an opinion of one of their experts. Second, they assert that the trial court erred by failing to instruct the jury regarding the burden of proof. Third, they argue that the trial court improperly permitted plaintiffs to exercise a peremptory challenge to prevent an elderly juror from being empaneled. Fourth, they complain that plaintiffs improperly indoctrinated the jury during voir dire. Fifth, they allege error because the trial court permitted an expert witness to testify when the expert witness could not fully identify how he was to be compensated for his testimony. Sixth, they claim that they are entitled to a remittitur because Laura failed to prove damages for the loss of a normal life. We will address these issues seriatim.

A. Violation of Supreme Court Rule 213

Defendants first contend that the trial court erred in permitting Dr. Cook, one of plaintiffs' expert witnesses, to give an opinion that, defendants claim, was not disclosed as required by Supreme Court Rule 213 (177 Ill.2d R. 213). Supreme Court Rule 213 requires parties to disclose "the conclusions and opinions of [an] opinion witness and the bases therefor." 177 Ill.2d R. 213(g). It is permissible for a witness to elaborate on a properly disclosed opinion. Becht v. Palac, 317 Ill. App.3d 1026, 1037, 251 Ill.Dec. 560, 740 N.E.2d 1131 (2000). Furthermore, that trial testimony is more precise than a disclosed opinion does not necessarily result in a violation. Prairie v. Snow Valley Health Resources, Inc., 324 Ill.App.3d 568, 576, 258 Ill.Dec. 202, 755 N.E.2d 1021 (2001). Whether an opinion has been adequately disclosed is a matter that lies within the discretion of the trial court. Department of Transportation v. Crull, 294 Ill.App.3d 531, 537, 228 Ill.Dec. 834, 690 N.E.2d 143 (1998). We will overturn a trial court's exercise of discretion only where no reasonable person could agree with the position that it takes. Nasrallah v. Davilla, 326 Ill.App.3d 1036, 1042, 260 Ill.Dec. 759, 762 N.E.2d 25 (2001).

Through a videotaped evidence deposition, Dr. Ronald Potkul testified regarding the Delgado scoring system. The Delgado system is used to predict the chances of the recurrence of cancer in victims such as Laura. Using this system, Dr. Potkul testified that Laura had an 85% chance of surviving five years. At trial, Dr. Cook criticized the Delgado system because it fails to take into account vascular and lymphatic invasion. Defendants contend that this criticism was not disclosed. We disagree.

In response to defendants' Rules 213(f) and (g) (177 Ill.2d Rs. 213(f),(g)) interrogatories, plaintiffs stated that it was anticipated that Dr. Cook would testify to the following:

"[A]ll women who suffer from invasive squamous cell cancer of the cervix face risk of cancer recurrence. Frequently these cancers will occur within two years of initial diagnosis, and that [sic] therefore the lack of recurrence in Laura Lawler can be considered a good sign. However, such cancers can recur or metastasize subsequent to two years or even five years. This is particularly true in the case of Laura Lawler because of the size of the lesion and the fact that there was lymphatic and vascular invasion. Although methods and systems exist that purport to predict chances of recurrence, these methods and systems are not statistically reliable and are limited to five-year survival rates."

Defendants claim that, although they anticipated that Dr. Cook would criticize the Delgado system based on the fact that it was limited to a five-year period, they could not have anticipated that he would criticize the system for failing to take into account vascular and lymphatic invasion.

Defendants' position is untenable. Plaintiffs' Rule 213 disclosure clearly states that cancers such as Laura experienced can recur beyond five years. It goes on to elaborate that this is particularly true in her case "because of the size of the lesion and the fact that there was lymphatic and vascular invasion." The passage concludes that statistical systems are not reliable and are limited to five-year periods. These concepts appear in consecutive sentences; the nexus between them is clear. A very reasonable reading of this passage is that statistical systems, like the Delgado system, are unreliable in cases, like Laura's, where there is lymphatic and vascular invasion. A reasonable person could agree with this very reasonable interpretation. Since a trial court abuses its discretion only where no reasonable person could agree with the position it takes (Nasrallah, 326 Ill.App.3d at 1042), 260 Ill. Dec. 759, 762 N.E.2d 25), no abuse of discretion occurred here. Since we conclude that the trial court did not err in allowing this testimony, we need not address defendants' contention that the testimony was prejudicial to them.

B. Instructing the Jury on the Burden of Proof

Defendants next argue that the trial court erred in failing to instruct the jury as to the burden of proof. The trial court used a pattern jury instruction stating the following: "The defendants have admitted liability for any injury which may have proximately resulted from the occurrence. You need only decide what injuries to the plaintiffs resulted from this occurrence and fairly compensate the plaintiffs for those injuries." See Illinois Pattern Jury Instructions, Civil, No. 23.01 (2000). Defendants astutely observe that this instruction does not state that the plaintiff bears the burden of proving what is at issue in the trial. The trial court concluded that it was proper to give the instruction without a burden of proof instruction and that, in any event, defendants waived the issue by failing to tender what they deemed to be a correct instruction prior to the time the jury was instructed. We apply the abuse-of-discretion standard to alleged errors in jury instructions. In re Timothy H., 301 Ill.App.3d 1008, 1015, 235 Ill.Dec. 370, 704 N.E.2d 943 (1998).

Defendants did not, in fact, tender a proposed instruction until after the parties had completed closing arguments and the jury had retired to deliberate. It has been stated that a party waives any objection to a jury instruction by failing to object to it at the instruction conference. Branum v. Slezak Construction Co., 289 Ill.App.3d 948, 956-57, 225 Ill.Dec. 88, 682 N.E.2d 1165 (1997). However, we need not decide whether tendering an instruction at this belated time constitutes waiver, for we conclude that the instruction tendered by defendants was erroneous.

On appeal, defendants argue that the trial court should have instructed the jury that plaintiffs bore the burden of proving "what injuries to the plaintiffs resulted from this occurrence." At trial, however, they proposed a somewhat different instruction. Defense counsel requested that the jury be given the following instruction: "The plaintiff has the burden of proving the following proposition, that the plaintiffs were injured." These propositions are not the same. At trial, defendant requested an instruction stating plaintiffs were required to prove that they were injured; here, they argue for an instruction stating plaintiffs were required to prove in what manner they were injured. That these propositions are not identical is easy to see. Regarding the former, if the jury concluded plaintiffs failed to sustain their burden of proof, an award of zero dollars would be appropriate. In the latter case, plaintiffs would be entitled to something, since this instruction reflects the fact that plaintiffs were injured.

Our review is limited to the instruction proposed at trial. In order to preserve an objection to the failure to give a jury instruction, the complaining party "must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the...