Opinion
No. 1-13-0281
09-03-2014
JANE GAVIN, Plaintiff-Appellee and Cross-Appellant, v. PRENTISE MOSLEY, and TREVIA FLOWERS, Defendants-Appellants and Cross-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 11 L 897 The Honorable Allen S. Goldberg, Judge, presiding. PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Neville and Pucinski concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in denying defendant's motion for a new trial where the issue of the jury receiving exhibits not admitted resulted in harmless error. Nor did the trial court err in giving the jury instructions regarding aggravation of preexisting conditions where the evidence supported this theory. But the trial court did err in reducing the jury's verdict. ¶ 2 We are asked whether the trial court erred (i) in allowing the jury to consider medical bills not admitted in evidence, and (ii) in giving IPI Civil No. 30.21, which relates to a plaintiff's rights to damages due to a pre-existing condition. In addition, the plaintiff cross-appeals, arguing that the trial court should not have reduced the verdict. We affirm on the two issues raised by defendants Prentise Mosley and Trevia Flowers (collectively Mosley) and reverse on plaintiff's cross-appeal regarding the trial court's reduction of the verdict.
¶ 3 BACKGROUND
¶ 4 In March 2009, plaintiff Jane Gavin (Gavin) was a passenger in a car driven by Maura Gavin, when Maura stopped the car to allow geese to cross the road. While stopped, a car driven by defendant Prentise Mosley and owned by defendant Trevia Flowers rear-ended the women's car. An ambulance took Gavin to the hospital. There, a CT scan of her head showed no injury, and she exhibited no signs or symptoms of illness or injury. Gavin was discharged the same day. On the following day, Gavin went to Evergreen Care Center, but did not receive any treatment. ¶ 5 After the accident Gavin continuously complained that her neck bothered her. She visited a dermatologist for a rash in July 2009, who referred her to a rheumatologist. Gavin told the rheumatologist of the neck pain, and numbness and tingling in her hands and feet. The rheumatologist diagnosed Gavin with lupus and referred her to a neurologist. In December 2009, the neurologist conducted an MRI of Gavin's brain and cervical spine. The neurologist saw Gavin again in March 2010 and July 2012, at which time a second MRI showed degenerative arthritis at multiple levels in Gavin's spine. The neurologist prescribed physical therapy, and Gavin attended several physical therapy sessions. ¶ 6 Gavin's neck pain caused her to forgo staying with her family at their summer home in Michigan; she could not water ski, go tubing, ride a bike, or walk her dog. Gavin's husband testified that after the accident, Gavin could no longer attend parties with him, and that she was always holding her neck. ¶ 7 In January 2011, Gavin filed a complaint alleging negligence and negligent entrustment again defendants. The case proceeded to trial in September 2012. ¶ 8 At trial, the neurologist testified via evidence deposition that "any injury can aggravate or provoke symptoms that haven't been there before," and that Gavin did not report any neck pain until after the March 2009 car accident. The neurologist further testified that, within a reasonable degree of medical certainty, the car accident was one of the causes of Gavin's neck stiffness and discomfort. ¶ 9 Gavin laid the foundation for her medical bills, and summarized them in an exhibit for the jury:
| LaGrange Memorial Hospital | March 21, 2009 | $2,914.70 |
| Emergency Healthcare Physicians, Ltd. | March 21, 2009 | $451.00 |
| Suburban Radiologists | March 21, 2009 | $169.00 |
| Evergreen Care Center | March 22, 2009 | $80.00 |
| Northwestern Medical Faculty Foundation (neurologist) | December 22, 2009 | $1,373.45 |
| July 12, 2012 | $295.00 | |
| July 25, 2012 | $412.00 | |
| Northwestern Memorial Hospital | December 22, 2009 | $10,745.70 |
| July 25, 2012 | $2,960.00 | |
| Chicago Lake Shore Medical Associates, Ltd. | August 10, 2009 | $4,080.00 |
| March 18, 2010 | $575.00 | |
| Elias Chiropractic Clinic | June 16, 2010 | $200.00 |
| Tri State Fire Protection District | March 21, 2009 | $1,310.00 |
| Athletico Physical Therapy | July 18, 2012-August 2, 2012 | $820.00 |
| Prescriptions | $71.43 | |
| Total | $26,457.28 |
¶ 10 Along with this summary exhibit, Gavin's counsel provided the jury copies of the bills to support the damages. In addition, Gavin's counsel provided the jury with an eight-page printout from Chicago Lake Shore Medical (CLSM) showing total charges of $9,490, including the $4,080 and $575, both of which appear on the summary exhibit. Although Gavin's counsel had withdrawn the CLSM printout before trial, at the close of Gavin's case, Mosley's counsel noticed that Gavin's attorney had not removed the CLSM printout from the other admitted evidence, at which point Gavin's attorney agreed to remove it. But, as it happened, Gavin's attorney did not remove it and defense counsel passed on an opportunity to review the exhibits before submitting them to the jury which might have revealed the presence of the printout. ¶ 11 The jury returned a verdict in Gavin's favor for $61,000. Damages included $18,622.72 for pain and suffering, $20,000 for loss of a normal life, and $22,377.28 for medical expenses. The jury awarded Gavin all her medical expenses listed in the table except for $4,080, CLSM services on August 10, 2009, which appeared on the summary exhibit. ¶ 12 Mosley filed a posttrial motion for a new trial arguing: (i) the jury improperly considered the CLSM account summary even though it was not admitted in evidence; and (ii) the court erred in giving Illinois Pattern Jury Instructions, Civil, No. 30.21 (2011) (IPI Civil No. 30.21), on aggravation of preexisting conditions. The judge denied the motion, but sua sponte reduced the judgment by $9,450. This appeal and cross-appeal followed.
¶ 13 ANALYSIS
¶ 14 Mosley argues that the trial court erred in allowing the jury to consider medical bills not admitted in evidence and in giving IPI Civil No. 30.21. Gavin argues the trial court erred in reducing the verdict.
¶ 15 Submission of Unadmitted Medical Bill Printout to Jury
¶ 16 Mosley argues that the trial court erred in failing to grant a new trial where Gavin submitted to the jury a printout of medical bills not admitted in evidence. We disagree. ¶ 17 Parties are not entitled to a perfect trial, only one free of substantial prejudice. Garest v. Booth, 2014 IL App (1st) 121845, ¶ 48. A new trial is not warranted if trial errors resulted in no injury to the litigant or had no effect on the outcome of the case. Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 86. ¶ 18 Any error that occurred here is harmless. Simple math suggests the jury awarded Gavin all the damages she asked for on her summary exhibit, less $4,080—the cost of medical treatment at CLSM in August 2009. The jury's reduction indicates that they did not believe Gavin's August 2009 treatment was related to her claim. Moreover, if the jury had consulted the CLSM printout, they might have deviated from the special exhibit detailing Gavin's damages. Mosley does not point to anything in the record indicating that the jury awarded Gavin excessive damages or at all consulted the CLSM printout to increase the damages award. Accordingly, any error in submitting the CLSM printout to the jury was harmless. See Control Solutions, LLC v. Elecsys, 2014 IL App (2d) 120251, ¶ 49 (finding harmless error where inadmissible evidence had no effect on jury's damages calculation).
¶ 19 Aggravation of Preexisting Condition Instruction
¶ 20 The trial court instructed the jury, in part, as follows: "If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition which rendered the plaintiff more susceptible to injury." See IPI Civil No. 30.21. Mosley argues that the trial court erred in giving this instruction. We disagree. ¶ 21 In a civil case, the court may instruct the jury on any theory, as long as some evidence in the record justifies the theory of the instruction, though the evidence be slight or insubstantial. Mobley v. TramCo Transmission, Inc., 2014 IL App (1st) 122123, ¶ 22. The decision to give a jury instruction is within the discretion of the trial court. Id. "A new trial should not be granted because of improper jury instructions unless a party's right to a fair trial has been seriously prejudiced." (Internal quotation marks omitted.) Davis v. City of Chicago, 2014 IL App (1st) 122427, ¶ 110. ¶ 22 This instruction is appropriate where the parties present evidence that the loss resulted from a combination of a preexisting condition and the accident. Podoba v. Pyramid Elec., Inc., 281 Ill. App. 3d 545, 551-52 (1996). The neurologist testified that (i) "any injury can aggravate or provoke symptoms that haven't been there before;" (ii) Gavin did not report any neck pain before the March 2009 car accident; and (iii) the car accident was one of the causes of Gavin's neck stiffness and discomfort. It is reasonable to conclude from this testimony that the car accident may have caused or aggravated Gavin's degenerative arthritis in her spine. This record justifies the use of IPI Civil No. 30.21.
¶ 23 Reduction of the Verdict
¶ 24 Gavin argues that the court erred in reducing the jury's verdict by $9,450. We agree.
¶ 25 A trial court may modify a jury's verdict through "remittiturs or additurs or even set aside, and a new trial ordered; or it may be rendered completely meaningless by the trial judge who enters judgment non obstante veredicto." In re Marriage of Davies, 95 Ill. 2d 474, 479 (1983). ¶ 26 The problem here is what procedural means the trial court used to reduce the jury's verdict. Gavin asserts that the trial court "set aside" the verdict. The reduction may also be considered a remittitur or a sanction. We review the reduction under all three theories. ¶ 27 "A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that portion of the jury's verdict which constitutes excessive damages and to accept the sum which has been judicially determined to be properly recoverable damages." Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 253 (2006). "Remittitur allows the court to reduce a jury's award where it falls outside the range of fair and reasonable compensation or results from passion or prejudice or where it is so large that it shocks the judicial conscience." Murphy v. Colson, 2013 IL App (2d) 130291, ¶ 35. We review the grant of a remittitur for an abuse of discretion. Drakeford v. University of Chicago Hospitals, 2013 IL App (1st) 111366, ¶ 68. "An abuse of discretion occurs when a trial court's ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial court." Id. ¶ 28 There is no indication that the jury used the CLSM printout in calculating Gavin's damages. Rather, as noted above, the jury did not use the CLSM printout to calculate Gavin's damages. Thus, no prejudice arose from the error, and the reduction was unnecessary. See Pister v. Matrix Service Indus. Contractors, Inc., 2013 IL App (4th) 120781, ¶ 55 ("An error in the admission or exclusion of evidence will not constitute reversible error unless one party has been prejudiced or the proceedings have been materially affected."). Accordingly, a remittitur was unreasonable and an abuse of the trial court's discretion. ¶ 29 Nor is the evidence sufficient to set aside the jury's verdict. "A jury should only consider the facts introduced into evidence at trial in rendering a verdict." Johnson v. Danville Cash & Carry Lumber Co., 200 Ill. App. 3d 196, 199 (1990). A trial judge may set aside a jury verdict where there is "competent and credible evidence of an improper external influence on the jury." (Internal quotation marks omitted.) Snelson v. Kamm, 204 Ill. 2d 1, 34 (2003). "[T]he meaning and effect of a verdict must be judged from its terms alone." (Emphasis in original.) Couch v. State Farm Ins. Co., 279 Ill. App. 3d 1050, 1056 (1996). As noted above, simple math shows the jury did not use the CLSM account summary to increase Gavin's damages. Accordingly, there is no evidence of any improper influence on the jury, and any set aside was improper. ¶ 30 Likewise, the reduction is not a proper sanction. An attorney should not submit inadmissible evidence to the jury in the form of argument or otherwise. See People ex rel. Woodward v. Oliver, 25 Ill. App. 3d 66, 76-77 (1975); Rowley v. Rousseau, 81 Ill. App. 3d 193, 196 (1980). Counsel's improper attempts to communicate with the jury constitute contemptuous behavior punishable by the trial court. Kemner v. Monsanto Co., 112 Ill. 2d 223, 249 (1986). The court's contempt powers should only be exercised in extreme situations. Woodward, 25 Ill. App. 3d at 73. ¶ 31 The record must reflect the factual basis for a finding of direct contempt. Woodward, 25 Ill. App. 3d at 75. "A person commits criminal contempt of court by conduct which is calculated to embarrass, hinder or obstruct the court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute." People v. Sheahan, 150 Ill. App. 3d 572, 574 (1986). The contemnor must have acted willfully or knowingly that his or her contemptuous conduct was forbidden. Id. Intent in a direct contempt can be inferred from the contemptuous conduct itself where it is committed in the physical presence of the judge or within an integral part of the court while the court is performing its judicial functions. Id. ¶ 32 Here, at the hearing on Mosley's posttrial motion, the trial judge held as follows:
"I will not grant a new trial as to this case; however, there is the fact of a $9,490 bill being given to the jury in which I find the plaintiff never intended to do that. That was never a bill that should have been given to the jury. I think that is accurate.¶ 33 Contrary to Mosley's contention, the court found that Gavin's counsel submitted the CLSM printout by mistake. Accordingly, there is no basis for a finding of direct criminal contempt. See Sheahan, 150 Ill. App. 3d at 574 (holding direct criminal contempt requires evidence of intent). As such, the submission of unadmitted evidence is not sanctionable, and the reduction cannot be upheld as a sanction for contempt. ¶ 34 Because we can glean no other basis for reduction of the jury's verdict, we reverse on that ground.
So I will find that the judgment should be reduced by the $9,450 bill ***.
*** but the point is that both of you [plaintiff and defense counsel] reached an agreement on something, and I think by mistake this went back there. That's the best conclusion I can make. Nobody intended to do it. It was a mistake ***." (Emphasis added.)
¶ 35 CONCLUSION
¶ 36 We affirm the trial court's denial of Mosely motion for a new trial, and reverse the portion of that order reducing the verdict. We remand for the trial court to reinstate the original verdict of $61,000. ¶ 37 Affirmed in part and reversed in part. ¶ 38 Cause remanded with directions.