Thornton v. As Special Adm'r Of The Estate Of Jason Anthony Ebner

• Decision Date: 22 April 2010
• Docket Number: No. 107028.,107028.
• Citation: 237 Ill.2d 100,928 N.E.2d 804,340 Ill.Dec. 557
• Parties: Toni THORNTON, Indiv. and as Special Adm'r of the Estate of Jason Anthony Ebner, Deceased, Appellee,v.Francisco J. GARCINI, M.D., Appellant.
• Court: Illinois Supreme Court

237 Ill.2d 100

928 N.E.2d 804

340 Ill.Dec. 557

Toni THORNTON, Indiv. and as Special Adm'r of the Estate of Jason Anthony Ebner, Deceased, Appellee,v.Francisco J. GARCINI, M.D., Appellant.

No. 107028.

Supreme Court of Illinois.

Oct. 29, 2009.

As Modified Upon Denial of Rehearing April 22, 2010.

COPYRIGHT MATERIAL OMITTED

Robert R. Gorbold and Pamela Davis Gorcowski, of Kavanagh Grumley & Gorbold LLC, Joliet, for appellant.

E. Kent Ayers, Kent F. Slater and John M. Spesia, of Spesia, Ayers & Ardaugh, Joliet, for appellee.

Leslie J. Rosen, Chicago, for amicus curiae Illinois Trial Lawyers' Association.

OPINION

Justice KILBRIDE delivered the judgment of the court, with opinion.

The primary issue we address in this appeal is whether expert testimony is required to prove negligent infliction of emotional distress. Defendant, Dr. Francisco Garcini, appeals from the second trial of a medical negligence claim. In that action, plaintiff, Toni Thornton, individually and as special administrator of the estate of her deceased infant son, sought damages for her son's death and compensation for negligent infliction of emotional distress. At the first trial, the jury found in favor of defendant. Plaintiff appealed, and the appellate court granted plaintiff a new trial. Thornton v. Garcini, 364 Ill.App.3d 612, 301 Ill.Dec. 386, 846 N.E.2d 989 (2006).

On retrial, the jury found in favor of defendant on plaintiff's wrongful-death and survival claims, but in favor of plaintiff on her negligent infliction of emotional distress claim. The appellate court affirmed. 382 Ill.App.3d 813, 321 Ill.Dec. 284, 888 N.E.2d 1217.

We allowed defendant's petition for leave to appeal. 210 Ill. 2d R. 315. We now affirm the judgment of the appellate court.

I. BACKGROUND

On August 28, 2000, plaintiff's son, Jason Anthony, was born prematurely in a breech position, at an approximate gestational age of 24 weeks. During childbirth, Jason's head became stuck in his mother's vagina, with the rest of his body outside the vagina. The infant died when the nurses at the hospital were unable to complete the delivery. Defendant arrived at the hospital an hour and 10 minutes later.

Plaintiff, as administrator of Jason's estate, brought an action for medical negligence against defendant, Silver Cross Hospital, and individual nurses. Plaintiff's suit contained wrongful-death and survival claims. Her suit also included an individual claim for intentional infliction of emotional distress, claiming she suffered emotional distress from the delivery.

At the first trial, the jury found in favor of defendant and the nurses on the wrongful-death and survival claims and the intentional infliction of emotional distress claim. On the intentional infliction of emotional distress claim against the hospital, the jury found for plaintiff and awarded her $175,000. Plaintiff filed posttrial motions against all the defendants. During the pendency of these motions, the hospital and nurses entered into a release of claims and satisfaction of judgment upon payment of $175,000. The trial court later denied the posttrial motion against defendant.

Plaintiff appealed only the judgment in favor of defendant. The appellate court reversed and granted plaintiff a new trial. Thornton, 364 Ill.App.3d 612, 301 Ill.Dec. 386, 846 N.E.2d 989.

At the second trial, defendant testified he was plaintiff's obstetrician. At 6:35 a.m. on the day of delivery, defendant was called at his home and advised that plaintiff was having contractions. He gave certain orders. The infant partially delivered in a breech position 35 minutes later, at 7:10 a.m. Nurses were present for the delivery, but no physician was present. The infant became entrapped at the neck during the delivery. Defendant instructed the nurses not to deliver the infant unless it could be done easily, because of a risk of decapitation. The nurses were unable to deliver the infant, and he died before defendant left his home. Plaintiff waited over an hour, with the deceased infant partially delivered, until defendant arrived to complete the delivery.

Plaintiff testified about her emotional state from laying in a hospital bed for over an hour with the infant partially delivered. Plaintiff stated she was depressed, and could not eat, or sleep. She could only think about laying there for an hour and 10 minutes, and there was nothing she could do but “sit there like that with my baby.” She further testified that she has these thoughts “[a]ll the time” and she has had thoughts of suicide because “[i]t was so horrible” and “I'm always reminded of that hour and ten minutes that I sat there with him.”

The infant's father and plaintiff's mother testified to the effect the infant's death and the circumstances of the delivery had on plaintiff. No expert witness testimony was presented on plaintiff's claim for emotional distress.

Plaintiff amended her complaint to conform to the proofs and submitted a negligent infliction of emotional distress claim to the jury. She only submitted her negligent infliction of emotional distress claim to the jury. Plaintiff did not submit her intentional infliction of emotional distress claim to the jury.

The jury found in favor of defendant on the wrongful-death and survival claims and for plaintiff on the negligent infliction of emotional distress claim. The jury award plaintiff $700,000 in damages.

Defendant filed a posttrial motion seeking a judgment notwithstanding the verdict, arguing that plaintiff failed to prove negligent infliction of emotional distress with expert testimony. Defendant's motion also sought a judgment notwithstanding the verdict based on the single recovery rule, and a setoff of the settlement paid by the hospital. The trial court denied defendant's posttrial motion. The appellate court affirmed. 382 Ill.App.3d 813, 321 Ill.Dec. 284, 888 N.E.2d 1217.

II. ANALYSIS

A. Judgment Notwithstanding the Verdict

Defendant contends he is entitled to a judgment notwithstanding the verdict based on plaintiff's failure to produce expert testimony on the cause of her emotional distress. Specifically, defendant argues that plaintiff failed to adduce expert testimony to establish that her emotional distress was caused by the delay in delivering the deceased infant.

Plaintiff argues that defendant forfeited or waived his right to object to the verdict for negligent infliction of emotional distress by failing to object to the jury instructions and to the competence of the lay witnesses who testified about emotional distress.

We disagree with plaintiff that defendant has forfeited this issue. A defendant must object to an error at trial and include it in a written posttrial motion to preserve an issue on appeal. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). The record indicates defendant repeatedly maintained in the trial court that plaintiff failed to present competent proof of causation for her emotional distress claim, absent expert testimony. Defendant moved for a directed verdict both at the close of plaintiff's case and at the close of all the evidence. In his trial arguments, defendant raised the issue of whether plaintiff presented sufficient evidence as a matter of law to submit the emotional distress issue to the jury. Accordingly, we determine defendant did not forfeit or waive this issue.

We review de novo a trial court's ruling on a motion for judgment notwithstanding the verdict. McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 132, 241 Ill.Dec. 787, 720 N.E.2d 242 (1999). Additionally, whether expert testimony is required to establish negligent infliction of emotional distress is an issue of law, subject to de novo review. See Woods v. Cole, 181 Ill.2d 512, 516, 230 Ill.Dec. 204, 693 N.E.2d 333 (1998). A motion for judgment notwithstanding the verdict should only be granted when the evidence and inferences, viewed in the light most favorable to the nonmoving party, “so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Maple v. Gustafson, 151 Ill.2d 445, 453, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992).

Defendant argues that under this court's decision in Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991), claims for negligent infliction of emotional distress must be proven by expert testimony to ensure that any verdict for emotional distress is supported by competent evidence. Conversely, plaintiff contends that Corgan does not require expert testimony to establish emotional distress.

In Corgan, the plaintiff brought an action for psychological malpractice alleging the defendant therapist violated his duties when he engaged in sexual relations with her under the guise of therapy. This court examined the issue of whether a plaintiff must allege physical symptoms to support a claim for emotional distress. In rejecting such a requirement, we stated:

“[L]ack of precision is not a justifiable reason to preclude recovery, as expert witnesses such as psychiatrists,

psychologists and social workers are fully capable of providing the jury with an analysis of a plaintiff's emotional injuries. * * *

* * * * * * [T]his court has not lost its faith in the ability of jurors to fairly determine what is, and is not, emotional distress. Furthermore, the women and men of the mental health care field have made significant improvements in the diagnosis, description and treatment of emotional distress.” Corgan, 143 Ill.2d at 311-12, 158 Ill.Dec. 489, 574 N.E.2d 602.

In reaching our conclusion that a plaintiff need not allege physical symptoms of emotional distress, this court quoted Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961):

“ ‘The stronger emotions when sufficiently aroused do produce symptoms that are visible to the professional eye and we can expect much more help from the men of science in the future. [Citation.] In addition, jurors from their own experience will be able to determine whether * * *

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