Velarde v. Illinois Cent. RR Co.

Decision Date08 November 2004
Docket NumberNo. 1-02-1859.,1-02-1859.
PartiesFidel VELARDE and Francisca Velarde, Plaintiffs-Appellees (Rafael Apulello and The Northern Trust Company, as Co-Guardians of Lilia Apulello, a Disabled person, and Rafael Apulello, Individually, Plaintiffs-Appellees), v. ILLINOIS CENTRAL R.R. CO., d/b/a Canadian National/Illinois Central R.R. Company, an Illinois Corporation, and Chicago Central & Pacific R.R. Company, a Corporation, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Timothy J. Cavanaugh, of Lloyd & Cavanaugh, Michael W. Rathsack, Chicago, for Plaintiffs-Appellees Fidel and Francisca Velarde.

Terrence J. Lavin, of Lavin & Nisivaco, P.C., David A. Novoselsky, Leslie J. Rosen of Novoselsky Law Offices, Chicago, for Plaintiffs-Appellees Rafael Apulello and Northern Trust Co.

Weston W. Marsh, Tonita M. Helton, of Freeborn & Peters and Clausen Miller P.C. (James T. Ferrini, Edward M. Kay, Paula M. Carstensen, Paul V. Esposito, of counsel), Chicago, for Defendants-Appellants. Justice McBRIDE delivered the opinion of the court:

This appeal involves a collision between a freight train and an automobile which occurred just after noon on January 9, 2001, on Army Trail Road in Bloomingdale, Illinois. The owner and maintainer of the tracks, defendant Illinois Central Railroad Company d/b/a Canadian National/Illinois Central Railroad Company (CNIC or railroad), knew that snow and road salt had caused the intersection's warning gates and lights to malfunction and was using a stop-and-flag procedure there until the signals were repaired. On this particular dry, sunny Tuesday afternoon, however, a CNIC dispatcher mistakenly advised a northwestbound train's engineer that the signal problem had been fixed, and the train, consisting of three locomotives and 63 cars, proceeded through the intersection at 50 miles per hour. The passengers of the southbound automobile it struck, plaintiffs Fidel and Francisca Velarde, and the driver of the automobile, the Velardes' adult daughter, Lilia Apulello, sustained primarily internal and closed head injuries when their 1998 Ford Explorer was broadsided and then rolled several times. The Velardes filed a negligence action against CNIC and the owner and operator of the train, defendant Chicago Central & Pacific Railroad Company (CC & P). Lilia filed a separate action against the same two defendants, which was consolidated with her parents' suit. As a result of her head injuries, however, Lilia was subsequently declared a disabled person, and her co-guardians, The Northern Trust Company and her husband, Rafael Apulello, became the plaintiffs to her claim (Lilia or the Apulellos). Rafael also added a claim of his own for loss of consortium. A jury awarded more than $54 million to the occupants of the Ford Explorer and apportioned 60% liability to CNIC, 35% to CC & P, and 5% to Lilia, resulting in a slight reduction of the monetary awards. The jury also awarded Rafael $3.5 million. The trial judge entered judgment on the awards and denied motions for judgment notwithstanding the verdict and a new trial. On appeal, CNIC and CC & P contend (1) the use of a day-in-the-life video about Lilia, (2) the slight allocation of negligence to Lilia, (3) the large awards, and (4) improper closing arguments warrant a new trial on the issues of liability and damages, or damages alone, or alternatively, remittitur by $38 million.

The focus of defendants' appeal is their contention they were "ambushed" by the Velardes and Apulellos on the first day of trial with a 22-minute day-in-the-life video about Lilia. Defendants state they were surprised by the video's existence, vehemently and repeatedly objected to its presentation to the jury, and then suffered a predictable "bloodbath" in excessive damages and badly misallocated fault when the video unfairly elicited sympathy for plaintiffs. Defendants contend the case must be retried without the video.

The facts pertinent to this issue are as follows. In March 2001, defendants issued Rule 213 interrogatories (177 Ill.2d R. 213), which included a question as to whether any photographs, movies and/or videotapes had been taken of the accident scene or the vehicle or persons involved. In June 2001, Lilia answered this question, "None." Trial was scheduled for Monday, January 28, 2002. Fact and opinion discovery closed in mid-November 2001. The video was recorded on January 8 and 12, or on January 8 and 16, 2002 — the earlier dates appear in the transcripts and briefs, and the latter are marked on the copy of the video used during the trial. The Apulellos' attorney finished editing the raw video footage on Friday, January 25, 2002. On Monday, January 28, 2002, the Apulellos' attorney told defense counsel that he had the video and intended to use it at trial. The video was discussed for the first time on the record that day, during the presentation of numerous motions in limine. At that point, neither the judge nor defendants had viewed the recording, and the judge deferred ruling on its admissibility.

The video was next addressed immediately after jury selection, on Tuesday, January 29, 2002. The Apulellos' attorney again raised the subject, describing the film as "demonstrative" rather than substantive evidence of the nature and extent of Lilia's injuries and indicating the parties were still exchanging demonstrative exhibits. The defense attorney acknowledged the defense was still working on a diagram, but said he was objecting to plaintiffs' use of the video because it was "way past any discovery disclosure time" and contained "testimonial" audio and unnecessary scenes. The Apulellos' attorney then offered to use the video without the audio track, said he would take out scenes showing Lilia's sister and nephew cleaning the house, and suggested the attorneys could meet that evening to reach an agreement about what else to "take out." The trial judge said "Okay," and then proceeded to address other aspects of the trial. The attorneys met that evening. According to a sworn statement from the Apulellos' attorney, he edited scenes from the video immediately after the attorneys met, in "strict accordance" with defense counsel's requests, and this version of the video was used at trial. The record shows the Apulellos' attorney played a few minutes of the video without the audio track during his opening statements, without objection from defendants. There was also no objection when Lilia's sister and Rafael narrated portions of the silenced recording while they described Lilia's weekday and weekend activities.

However, at the end of the week, on Friday, February 1, 2002, defense counsel broached the topic with the judge, stating:

"[DEFENDANTS' COUNSEL]: [The Apulellos' attorney] and I met [Tuesday night] at my office. I said, Look, I'll withdraw my objection if A, you take the audio out, B, some other parts and the other thing I said is I want the outtakes, I wanted unedited tapes, that was my deal.
I haven't gotten them, and my indication here today is I'm not going to get those unedited tapes. If that's the case then I'm going to renew my objection."

The Apulellos' counsel responded that according to the supreme court's opinion in Cisarik v. Palos Community Hospital, 144 Ill.2d 339, 162 Ill.Dec. 59, 579 N.E.2d 873 (1991), the Apulellos' outtakes from the original footage were privileged attorney work product, but that he had been willing to give the defense the edited version of the film which the Apulellos had intended to use at trial and the scenes defense counsel edited from that version when the attorneys met to review the prepared exhibit. The defense attorney countered:

[DEFENDANTS' COUNSEL]: Judge, * * * I don't have it here because this issue just came up, [but] there is actually some [case law] that [indicates] * * * I'm even entitled to be there at the time these [scenes] are filmed. This is essentially no matter how you cut it, whether there is voice on it or no voice on it, a day in the life is a testimonial presentation. I can't cross examine the film.
The only thing I can do is see what was pulled out. What was pulled out is in essence a way that I could cross examine * * *. * * * I'm renewing my objection if I don't get those outtakes."

The Apulellos' attorney responded that Cisarik was case law directly on point and that it shielded the Apulellos' outtakes from discovery. He questioned whether he would be expected to bring in all the drafts of any other trial exhibit. The defense attorney admitted that he was unfamiliar with Cisarik, but stated, "I was withdrawing an objection * * * to the video because they agreed, A, to take out the audio, B, because they agreed to take out pieces of it, and I said C, I want the outtakes." The trial judge reassured defense counsel that he would receive plaintiffs' outtakes if the defense was legally entitled to them. However, after the defense attorney reviewed Cisarik during a break in the proceedings, he stated:

"[DEFENDANTS' COUNSEL]: Judge, for the record, I am not going to disagree with what [the Apulellos' counsel] said Cisarik says. It does.
I just want to make clear on the record my objection because, on the record, I disagree with Cisarik. I think it is wrong.
My objection is A, that in my view it should have been produced during discovery so I am renewing that objection.
B, I believe the outtakes are not work product, and that's it."

Nevertheless, in their combined posttrial motion for a new trial and judgment notwithstanding the verdict, defendants argued in part that the video should have been barred because defendants were wrongfully denied plaintiffs' outtakes. The Apulellos responded that the version used at trial was in fact "defense-approved." They summarized the proceedings quoted above and tendered the affidavit referenced above in which plaintiffs' counsel described his interaction with the defense...

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