Mack v. Anderson

Decision Date28 December 2006
Docket NumberNo. 1-04-1477.,1-04-1477.
Citation861 N.E.2d 280,308 Ill.Dec. 215
PartiesWanda MACK and Rex T. Furlough, Sr., as Independent Administrators of the Estate of Eloise Warren, Deceased, Plaintiffs-Appellants, v. Kenneth ANDERSON III, Individually and as an Agent and/or Employee of Anderson Surgical Group, S.C.; Judith Keddington, Individually and as an Agent and/or Employee of Anderson Surgical Group, S.C.; Anderson Surgical Group, S.C., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Marc Chemers, Scott L. Howie, of counsel), Chicago, for Defendants-Appellees.

Justice NEVILLE delivered the opinion of the court:

Wanda Mack and Rex Furlough, Sr., the independent administrators of Eloise Warren's estate (the plaintiffs), filed a medical malpractice action in the circuit court for wrongful death and named as defendants Dr. Kenneth Anderson, Dr. Judith Keddington, and Anderson Surgical Group, S.C., individually and as agents of SSM Health Care Corporation, doing business as St. Francis Hospital and Health Center (St. Francis Hospital), (the defendants). After a jury trial, a judgment was entered for the defendants. On appeal, the plaintiffs present the following three issues for our review: (1) whether the trial court erred and violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when the plaintiffs and the defendants were given five peremptory challenges but the defendants used their five peremptory challenges to remove five black jurors from the jury; (2) whether the trial court erred when it instructed the jury with Illinois Pattern Jury Instructions, Civil, No. 12.05 (2005 ed.) (hereinafter IPI Civil (2005)); and (3) whether the trial court erred when it denied the plaintiffs' motion for judgment notwithstanding the verdict.

BACKGROUND

This opinion only involves a discussion of those facts that the court needs to address the issues presented in this appeal. On April 26, 1999, Ms. Warren was admitted to St. Francis Hospital for the purpose of having a laparoscopic Nissen fundoplication performed to help alleviate her acid reflux condition. Dr. Anderson and Dr. Keddington performed the laparoscopic Nissen fundoplication procedure. After the operation, Ms. Warren began to experience swelling in her neck and tightness in her chest. Between April 27 and May 7, 1999, Ms. Warren underwent a series of tests and Xrays to diagnose the problems she was experiencing. On May 7, 1999, Dr. Anderson and Dr. Keddington performed a laparotomy on Ms. Warren to repair a perforation of the anterior wall of her stomach, which occurred during the initial laparoscopic Nissen fundoplication on April 26, 1999. On May 9, 1999, Ms. Warren underwent another chest Xray which revealed extensive subcutaneous emphysema. Shortly thereafter, another operation was performed to relieve a right tension pneumothorax that had developed in her chest. On May 10, 1999, two weeks after she underwent the laparoscopic Nissen fundoplication surgery, Ms. Warren suffered a cardiac arrest and died. Mack and Furlough, the independent administrators of Ms. Warren's estate, filed a complaint for wrongful death and named Dr. Anderson, Dr. Keddington, and St. Francis Hospital as defendants.

Jury Selection

On August 19, 2003, jury selection began. The plaintiffs and defendants were each given five peremptory challenges. Jury selection culminated in the following 12 jurors being selected: Panel 1: Patricia Cahill, Deanne MacDonald, John Labranche, and Sharonda Holmes; while selecting the second panel of jurors, prospective juror Raymond Riley was challenged and excused by Dr. Anderson's attorney; Panel 2: Claudia Hurtado, Irene Correa, Michael Sietsema, and Lois Hervai; and Panel 3: Mary Ellen Quarles, Mary Strotman, Robert Blafka, and Raymond Davies.

After the three panels of jurors were selected by the parties, the court began selecting the alternates and the following colloquy took place:

"THE COURT: * * * Panel now to the plaintiffs is Collins, and Larry Stewart, the ramp worker at O'Hare.

MR. ROGERS: Plaintiff tenders.

THE COURT: All right. Anderson, you are tendered Norma Collins and Larry Stewart.

MR. LURA: Anderson will use his last strike on Larry Stewart, your Honor.

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

* * *

MR. LANGHENRY: Your Honor, I'm going to excuse Ms. Collins.

THE COURT: Keddington excuses Collins. All right. The panel to you now is Bowman and Barry.

* * *

THE COURT: Again, I don't — there was no representation here. He consulted with Mr. Rogers and there was no attorney/client relationship established. No, I'm not going to excuse for cause.

MR. LANGHENRY: I move to excuse Mr. Barry.

THE COURT: Mr. Barry, who's doing this?

MR. LURA: Keddington.

MR. LANGHENRY: Keddington.

THE COURT: Mr. Barry is excused by Keddington. All right. Hospital, the panel to you now is Latonya Bowman and Orlassia Sims.

MS. ENRIGHT: I'll strike Sims, your Honor.

THE COURT: Very well. Panel to you is Bowman and Seals.

MS. ENRIGHT: I'll accept that, your Honor."

THE PLAINTIFFS' BATSON MOTION

Step One of the Batson Hearing

After the alternates Latonya Bowman and Roger Seals were tendered to the plaintiffs, the plaintiffs' attorney made a motion, pursuant to Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, arguing that the defendants had used their peremptory challenges to exclude five black jurors from the jury. The plaintiffs' counsel argued that "[e]very single juror that the defendants have stricken has been African American." The black jurors excused by the defendants were: (1) Raymond Riley, (2) Larry Stewart, (3) Norma Collins, (4) Ruben Barry, and (5) Orlassia Sims. The trial court noted that Dr. Anderson's counsel used his peremptory challenges to exclude Riley and Stewart; Dr. Keddington's counsel used her peremptory challenges to exclude Collins and Barry; and the hospital used its peremptory challenge to exclude Sims. The trial court then stated that "in terms of the procedure here, I believe the defendants are required to give me a race neutral reason for each of these challenges." The defendants argued that the plaintiffs failed to establish a pattern of discrimination because three of the jurors, John Labranche, Sharonda Holmes, and Mary Ellen Quarles, accepted by the defendants were African-Americans. The court stated that all of the defendants' peremptory challenges had been exercised against African-Americans and that the defendants had to provide a race-neutral reason for their exclusion.

Step Two of the Batson Hearing
Raymond Riley

One of the defendants' attorneys noted that during voir dire, he had expressed concern about Raymond Riley. The defendants' attorney stated that Riley never looked up or made eye contact with the attorneys when being questioned and one defense attorney opined that he might be a "goofball" juror. Plaintiffs' attorney stated that he did not think Riley was a "goofball."

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

Larry Stewart

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

Norma Collins

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

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

Ruben Barry

During voir dire, venireman Ruben Barry mentioned that he met with and consulted with the plaintiffs' attorney (Larry Rogers) sometime in 1994 regarding plaintiffs' counsel's possible representation in a wrongful death lawsuit. Barry stated that although he met with plaintiffs' attorney, he did not retain him on the case. Barry stated that he had...

To continue reading

Request your trial
13 cases
  • Davis v. Fisk Elec. Co.
    • United States
    • Texas Supreme Court
    • 26 d5 Setembro d5 2008
    ..."if they are sufficiently specific to provide a basis upon which to evaluate their legitimacy"); Mack v. Anderson, 371 Ill.App.3d 36, 308 Ill.Dec. 215, 861 N.E.2d 280, 297 (2006) (noting that "conduct and demeanor must be given close scrutiny because such perceptions may easily be used as a......
  • People v. Payne
    • United States
    • United States Appellate Court of Illinois
    • 9 d1 Março d1 2015
    ...characteristic; and (7) the race of the objecting party, the victim, and the witnesses at trial. Mack v. Anderson, 371 Ill.App.3d 36, 44–45, 308 Ill.Dec. 215, 861 N.E.2d 280 (2006) (citing People v. Williams, 173 Ill.2d 48, 71, 218 Ill.Dec. 916, 670 N.E.2d 638 (1996) ). ¶ 43 Once a defendan......
  • Fleming v. Moswin
    • United States
    • United States Appellate Court of Illinois
    • 13 d1 Agosto d1 2012
    ...using a peremptory challenge to exclude a prospective juror solely on the basis of his or her race.” Mack v. Anderson, 371 Ill.App.3d 36, 43, 308 Ill.Dec. 215, 861 N.E.2d 280 (2006) (citing Batson, 476 U.S. at 89, 106 S.Ct. 1712). This rule was extended in Edmonson v. Leesville Concrete Co.......
  • People v. Crawford
    • United States
    • United States Appellate Court of Illinois
    • 16 d1 Dezembro d1 2013
    ...citations to People v. Davis, 231 Ill.2d 349, 363, 326 Ill.Dec. 21, 899 N.E.2d 238 (2008), and Mack v. Anderson, 371 Ill.App.3d 36, 60, 308 Ill.Dec. 215, 861 N.E.2d 280 (2006), do not support his claim. At the outset, Davis is factually distinguishable. There, the trial court held a Batson ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT