Travaglini v. Ingalls Health System ( 2009 )

SECOND DIVISION
NOVEMBER 24, 2009
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CLARA TRAVAGLINI, Independent Executor of the ) Appeal from the
Estate of Bernard M. Travaglini, Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 03 L 14953
)
INGALLS HEALTH SYSTEM and INGALLS )
MEMORIAL HOSPITAL, ) Honorable
) Thomas R. Chiola,
Defendants-Appellants. ) Judge Presiding.
PRESIDING JUSTICE CUNNINGHAM delivered the opinion of the court:
Following a jury trial of this wrongful death action, on September 13, 2007, the circuit court
of Cook County entered judgment on the jury’s verdict of $500,000 for the plaintiff Clara Travaglini
(the plaintiff)1, the independent executor of the estate of Bernard M. Travaglini (the decedent) and
his wife, and against the defendants, Ingalls Health System, a corporation, and Ingalls Memorial
Hospital, a corporation (the defendants). The defendants now appeal, alleging that the trial court
permitted the opinion of a lay witness, Lamont Carrel (Carrel), that he observed the victim choking
and that testimony was in fact a “medical opinion” and therefore erroneously admitted. They also
argue that the testimony of the plaintiff’s expert witnesses was insufficient to meet the plaintiff’s
burden of proof because those witnesses relied upon the erroneously admitted testimony of the lay
1
Although Clara’s son, Albert Travaglini, was listed by the parties as a plaintiff in the trial
court and on appeal, he is not a party to the lawsuit, but was allowed to sit in Clara’s stead at the
trial because of her ill health. Accordingly, he is not listed as a party in this opinion.
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witness and therefore the trial court erred in failing to grant a directed verdict for defendants at the
close of the plaintiff’s case. In a second challenge to the testimony of the lay witness, Carrel, the
defendants contend that the witness should not have been permitted to testify concerning what he
observed as the decedent was dying and therefore a pattern instruction on determining damages for
pain and suffering should not have been given. Illinois Pattern Jury Instructions, Civil, No. 31.10
(2006) (hereinafter, IPI Civil (2006). The defendants allege that the plaintiff’s expert on nursing care,
nurse Pamela A. Collins, should not have been permitted to testify that the defendants’ nursing staff
violated the standard of care. The defendants also assert that the jury verdict was contrary to the
manifest weight of the evidence. They allege that one of the plaintiff’s medical experts, Dr. Daniel
M. Derman, testified to previously undisclosed medical opinions in violation of Supreme Court Rule
213 (210 Ill. 2d R. 213) and that his testimony should have been stricken. The defendants also
challenge the testimony of expert witness Dr. James Bryant, the pathologist hired by the decedent’s
family to perform an autopsy and subpoenaed by the plaintiff, to testify at trial. The defendants allege
that Dr. Bryant violated Rule 213 (210 Ill. 2d R. 213) because key portions of his testimony were
not disclosed before trial. The defendants further assert that the trial court erred in not permitting
them to submit two special interrogatories to the jury. They also contend that comments by the trial
court denied them a fair trial. Finally, the defendants contend that the trial court erred in barring them
from using a prior conviction to impeach the lay witness, Carrel. We affirm.
BACKGROUND
The following facts were established at trial. On February 22, 2002, the plaintiff’s 84-year-old
husband, Bernard Travaglini (decedent), was hospitalized at Ingalls Memorial Hospital for overnight
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monitoring because he had been complaining of not feeling well. Dr. Harish Bhatia testified that he
had been the decedent’s doctor for “many years.” Dr. Bhatia was board certified in internal medicine
and had his own practice, with admitting privileges at Ingalls Hospital. Dr. Bhatia testified that when
he arranged for the hospital admission of the decedent, he specifically instructed Phyllis Badmus, a
nurse at the hospital, that the decedent should be assisted with his food and monitored while eating.
The decedent was known to experience difficulty swallowing food as the result of a stroke.
Testimony at trial established that the decedent’s wife, Clara Travaglini, always monitored and
assisted him while he ate, to ensure that he ate slowly, ingesting only one piece of food at a time.
There was also testimony that at mealtimes, Clara would cut the decedent’s food into small pieces
to minimize his swallowing difficulty. Dr. Bhatia testified that at about 10 p.m. on the day the
decedent was admitted to Ingalls, he received a call from the hospital informing him that the decedent
had died. He also testified that he had a “vague recollection” of being told that there was nobody in
the room while the decedent was eating.
The decedent’s three sons testified that he frequently would choke when he ate, but if he ate
slowly he did not experience this problem. They also testified that the night before the decedent’s
scheduled funeral they decided to have an autopsy performed on him, after they received a telephone
call from the mother of Lamont Carrel, the decedent’s hospital roommate.
Carrel testified that he was 18 years old at the time of the occurrence and shared the hospital
room with the decedent on the night in question. Carrel and the decedent were engaged in casual
conversation when a nurse’s aide brought the decedent a sandwich and then left the room. The aide,
Jenica Mauban, testified that she could not recall anything about her interactions with the decedent.
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According to Carrel, as the decedent was eating his sandwich, he began to choke. Carrel said that
no one was monitoring the decedent while he ate. Carrel testified as follows:
“Then we was talking, like, all of a sudden, like, I didn’t really
hear him talking no more and I hear him – I heard a struggle like he
was choking. He was choking. I asked him was he all right, he was
not responding, so he got violent. He got really violent. He was
choking. He was struggling in the bed, so I started pressing the
button for the nurse.
***
I heard him – I seen him choking. He was moving violent. He
was struggling. He was trying to get out and sit up all the way. He
was choking.
***
[In response to counsel’s question regarding whether the
decedent was making any sounds] Yes. Choking noise, violent –
violent motions and he was choking. He was leaning into it, like his
neck, he was choking.”
According to Carrel, when he pushed the emergency button, a nurse came into the room within
several minutes. He told her “The guy next to me is choking.” The nurse ran out of the room and
then numerous hospital personnel came in and began to work on the decedent. Carrel’s trial
testimony describing what he saw was as follows:
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“They was working on him. They was doing a lot of stuff to
him but he didn’t make it. I knew that just by looking – he was
looking at me the whole time. The whole time he was looking at me
with his eyes *** I know he didn’t make it. I was looking at him.”
The defense never submitted a motion in limine before trial to bar this testimony nor did they object
nor seek to have this testimony barred or stricken during trial. They first objected to this testimony
in their posttrial motion for a new trial, asserting that as a lay witness, Carrel was not qualified to
testify that the decedent was choking.
The plaintiff presented the expert testimony of a registered nurse, Pamela A. Collins, on the
question of whether the standard of care for nurses was breached in the care and treatment of the
decedent. Collins testified that she had a bachelor of arts degree and a master’s degree in nursing,
as well as a bachelor of arts degree in community health and public education. She had been a
nursing administrative supervisor and then became a nurse manager of a 27-bed medical-surgical unit.
She had also taught nursing at a number of colleges and universities and had received a certification
in medical-surgical nursing. In preparation for her testimony she had reviewed pertinent medical
records and the depositions of nurse Phyllis Badmus, nurse’s aide Jenica Mauban, the doctors who
were involved in the case, and Lamont Carrel, the decedent’s roommate.
Nurse Collins testified that the role of a nurse would be to supervise and manage the care of
a patient like the decedent. The nurse’s aide would act under the direct supervision of the nurse,
performing supportive care, such as bathing and feeding the patient if the situation was sufficiently
stable. Before the nurse delegated duties to an aide, the nurse had to determine that the duties were
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appropriate for performance by the aide. Specifically, if a patient had a documented swallowing
disorder, the nurse could only delegate the task of feeding the patient to an aide after assessing the
experience level of the aide and determining whether the aide was qualified to perform that task.
Nurse Collins testified that it was her understanding that there was an order that the decedent be
monitored while eating. It was also her understanding that nurse Badmus delegated this monitoring
to nurse’s aide Jenica Mauban, without determining whether Mauban was qualified to perform the
task. This was a deviation from the appropriate standard of care for a nurse. According to nurse
Collins, nurse Badmus should have monitored the decedent herself. It was nurse Collins’ opinion
that given the decedent’s medical condition, simply giving him a sandwich and leaving the room
without any monitoring of the decedent as he ate the sandwich, as Jenica Mauban allegedly did, was
a deviation from the appropriate standard of care.
Dr. James Bryant, the pathologist who was retained by the decedent’s family to perform the
autopsy on the decedent, was subpoenaed to testify by the plaintiff. He was board certified in the
field of pathology, had previously been the chief pathologist at Provident Hospital in Chicago, and
also had been on the faculty of Rush Medical College in Chicago. At the time of his testimony he was
in private practice.
Prior to performing the autopsy, Dr. Bryant learned from the decedent’s clinical summary that
someone had witnessed the decedent choking on food before his death at the hospital. The autopsy
revealed that there were food particles in the decedent’s tracheobronchial tree. That structure
consists of the air passages leading from the trachea to the lungs. Dr. Bryant found similar food
particles in the decedent’s esophagus, leading him to conclude that the decedent had aspirated, or
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breathed in, food from his stomach and esophagus into his tracheobronchial tree. Dr. Bryant testified
that he did not find any food bolus (a large piece of food) in the decedent’s trachea, pharynx, or
larynx. When he examined slides of samples taken from the decedent’s lungs, he observed foreign
particles in the most distant parts of the decedent’s tracheobronchial tree. He could not identify
these particles, but they were consistent with his finding of food particles higher up in the decedent’s
lungs. It was Dr. Bryant’s testimony that these particles had to have been breathed into the
decedent’s lungs; they could not have been driven there by resuscitation efforts. Dr. Bryant
concluded that this meant that the decedent was alive when the foreign particles entered his lungs.
It was Dr. Bryant’s opinion that the cause of the decedent’s death was acute aspiration of partially
digested food particles.
When asked if his diagnosis was consistent with a live person choking on food, Dr. Bryant
responded that he did not find a food bolus. He also stated that he had learned earlier in the day of
his trial testimony, while reviewing medical records shown to him by the plaintiff’s attorney, that such
a bolus had been removed from the decedent in resuscitation efforts, during the attempts to save the
decedent’s life. Defense counsel objected to this testimony as a violation of Supreme Court Rule
213. 210 Ill. 2d R. 213. The trial court initially overruled the objection, but when the defendants
made the same objection the next day, the trial court sustained the objection and instructed the jury
to disregard Dr. Bryant’s testimony regarding learning that a food bolus had been removed from the
decedent during resuscitation efforts. Dr. Bryant also testified that it was possible that the decedent
was still eating when he aspirated stomach contents into his respiratory tract. The doctor explained
the difference between choking and aspiration. He said choking is when a person’s trachea is
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blocked by something the person swallowed. Aspiration is an irritation of the lining of the respiratory
tract, resulting in a cessation of breathing.
Dr. Daniel M. Derman, a specialist in internal medicine, was one of the plaintiff’s medical
experts. He is a graduate of the medical school at the University of Illinois, and performed his
residency at Northwestern University, Feinberg School of Medicine and Northwestern Memorial
Hospital in Chicago, where he worked an extra year as the chief medical resident. At the time of his
testimony he was the president of a group of 85 physicians called the Northwestern Memorial
Physicians Group. He estimated that he had treated close to 100 patients with a history of stroke and
swallowing difficulties, similar to those of the decedent. In preparation for his testimony he reviewed
the medical record of the decedent’s admission to Ingalls Hospital in February 2002. He also
reviewed Dr. Bhatia’s record and deposition testimony, as well as the deposition testimony of the
decedent’s hospital roommate, Lamont Carrel; the Travaglini family members; the nursing personnel
involved in the decedent’s care; and the defense experts.
Dr. Derman testified that his review of the medical records established that the decedent had
been eating a turkey sandwich before medical assistance was summoned. In their resuscitation efforts
the medical personnel tried to insert a breathing tube, but food blocked its passage. A second tube
was inserted, but food particles continued to block it. The Heimlich maneuver was attempted twice
on the decedent with no success. Medical personnel then used suction to remove large particles of
food. Suddenly the food was dislodged, and the decedent’s trachea opened up. However, this was
after 14 minutes of trying to unblock the trachea.
After reviewing all of the materials described, it was Dr. Derman’s opinion, to a reasonable
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degree of medical certainty, that the decedent died because portions of the turkey sandwich which
he was eating blocked his trachea and caused respiratory failure. Dr. Derman testified that a less
likely cause of death was that of choking on aspirated food, which is food that came up from the
decedent’s stomach. In response to questions from the defense attorney, Dr. Derman also testified
that it was “very, very unlikely” that the decedent died of a stroke or heart attack. It was similarly
unlikely that the food particles found in the decedent’s lungs got there after his death. Dr. Derman
based this opinion in part on the eyewitness testimony of Carrel, who said that the decedent began
to choke while eating a sandwich. It was also the doctor’s opinion that if the decedent had been
monitored while he was eating the sandwich, his death would have been prevented. In response to
additional questions, Dr. Derman testified that even if food particles found in the decedent’s
respiratory tract had been acidified, this would not necessarily mean that the particles originated from
the stomach. The particles could have become acidified during disintegration of the body following
death. He also stated that in addition to asphyxiation from food particles ingested by mouth, stomach
contents could also contribute to asphyxiation.
Nurse Phyllis Badmus testified for the defendants that she attended to the decedent on the
night of his death. She denied that Dr. Bhatia had told her that the decedent should be monitored
when eating. She also testified that the hospital admission notes contained no instructions about
assisting the decedent with eating. Nurse Badmus admitted that if there had been an order to monitor
the decedent while eating, then her failure to do so would have been a deviation from the appropriate
standard of nursing care. But nurse Badmus also testified that the decedent’s wife told her of
concerns about decedent’s eating and swallowing difficulty. For this reason, nurse Badmus instructed
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the nurse’s aide, Jenica Mauban, to monitor the decedent while he ate. She agreed in her testimony
that the hospital record established that during resuscitation efforts, a large amount of “food” was
removed from the decedent’s trachea. She also agreed that the record establishes that hospital
personnel used the Heimlich maneuver on the decedent several times during the resuscitation efforts.
They ultimately were successful in clearing his trachea, but the decedent did not recover and was
pronounced dead at 10:54 p.m. that evening.
Dr. Jay Goldstein, board certified in gastroenterology and in internal medicine, a professor
at University of Illinois at Chicago and the director of its Clinical Research Center, testified as a
medical expert for the defendants. He explained the mechanisms of eating and breathing. When one
chews food it forms what is called a bolus, which is a mound or grouping of food, that is swallowed
and goes down the esophagus into the stomach. The stomach churns the food and turns it into a
liquid, which is called chyme. When air is breathed, it goes down the trachea and into the lungs. The
esophagus and the trachea come together in the pharynx. At the convergence of the pharynx there
is a flap, called the epiglottis, which ordinarily covers the trachea when food is being swallowed, so
that chewed food is directed into the esophagus instead of the trachea.
Dr. Goldstein reviewed the depositions of Dr. Bryant, Jenica Mauban, nurse Badmus, Dr.
Bhatia, the Travaglini family, nurse Annette Nancy Bannon (one of the nurses who responded to the
emergency), and Dr. Derman, as well as the medical charts for the decedent’s admission to Ingalls
Hospital on February 22, 2002, Dr. Bryant’s autopsy report, and the decedent’s death certificate.
Dr. Goldstein was asked to evaluate the opinion of Dr. Derman (as given in Dr. Derman’s pretrial
deposition) that the decedent’s death was due to choking on a food bolus that became lodged in his
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trachea. Dr. Goldstein disagreed. It was Dr. Goldstein’s belief, to a reasonable degree of medical
certainty, that the decedent vomited and then aspirated the vomitus into his lungs, blocking the large
air pathways and then eventually the small air pathways. This caused the decedent to be unable to
breathe and led to cardiac arrest and death. Dr. Goldstein believed that the contents of the decedent’s
lungs consisted of small pieces of acidified food, as would be found in the stomach. This appeared
to be consistent with the aspiration of stomach contents.
Dr. Goldstein agreed that the medical record indicated that the decedent had difficulty
swallowing. He cited the facts found in the report: the attempts to resuscitate the decedent; the
attempt to place a breathing tube in the decedent’s throat; the absence of a large piece of turkey or
bread being found during resuscitation efforts; and the discovery of small particles of food which were
acidifying. Dr. Goldstein testified that this was consistent with the autopsy findings; specifically that
particles of food in the esophagus were acidified and matched the particles of food found in the
trachea and lungs. Dr. Goldstein explained that food is only acidified after it is swallowed and is in
the stomach. In the stomach, the pieces of food are much smaller than chewed food which has not
yet been swallowed.
Dr. Goldstein learned from the medical record that when the decedent was found, he was not
breathing. Cardiopulmonary resuscitation (CPR) was administered and a breathing tube was placed
in the decedent’s trachea to attempt to deliver oxygen into his lungs. There was a blockage, so
hospital personnel attempted to suction the breathing tube. This was unsuccessful, so they inserted
a larger breathing tube. Eventually they removed particles of food and were able to administer
oxygen to the decedent.
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Dr. Goldstein stated that if Carrel testified that he witnessed the decedent choking on food
while eating a sandwich, this would not mean that food contents had aspirated from the decedent’s
stomach. Dr. Goldstein theorized that the decedent’s gag reflex could have been triggered by
partially chewed food becoming lodged in his throat. The result would have been vomiting of the
stomach contents. However, Dr. Goldstein testified that he did not believe that this is what happened
to the decedent, because there was no reported observation of a bolus of partially chewed or non-
acidified food during the resuscitation. The personnel attending to the decedent saw particles, not
pieces of food. However, Dr. Goldstein also agreed that there is a continuum when food is eaten.
As food is chewed, swallowed and enters the stomach, the pieces of food become progressively
smaller. The doctor stated, “The fine line between *** food that you chew and food that’s dwelled
in your stomach for two to three hours, *** there’s no good definition to separate those two, it’s
a continuum and, so we use the terms interchangeably.” He concluded that describing something as
food does not necessarily mean anything other than it came from somewhere between the mouth and
the stomach.
Dr. Goldstein disagreed with the opinion of Dr. Bhatia, the decedent’s physician, that the
cause of death was choking on food. He noted that the Heimlich maneuver was attempted on the
decedent several times, but was unsuccessful, noting that the medical report did not mention the
dislodging of a “piece of something.”
The defendants presented the expert testimony of MariJo Letizia, a full-time nursing instructor
at Loyola University-Chicago. She testified that she had completed a nursing degree at Loyola
University. She also obtained a master’s degree in nursing from Northern Illinois University, another
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master’s degree in nursing and a doctoral degree from the Loyola University Chicago School of
Education. Nurse Letizia reviewed the decedent’s hospital record as well as the deposition testimony
of many of the doctors and nurses testifying in the case. It was her opinion that nurse Badmus did
not deviate from the appropriate standard of care in her care and treatment of the decedent on
February 22, 2002.
Nurse Letizia observed that nothing in the decedent’s medical chart indicated that the
decedent had dysphagia (difficulty swallowing). However she did acknowledge that nurse Badmus
had written on the decedent’s chart that the decedent’s wife had requested that the decedent be
watched while he ate. Nurse Letizia disagreed with the opinion of nurse Collins that nurse Badmus
should have personally monitored the decedent while he ate. However, she agreed that the standard
of care required that the nurse’s aide, Jenica Mauban, who was assigned to monitor the decedent,
should have remained with the decedent and monitored him while he ate.
Dr. Nancy Jones testified as a medical expert for the defendants. She was retained to examine
the proximate cause opinion of Dr. Derman, the plaintiff’s medical expert. She is a clinical
pathologist and at the time of her testimony she was a medical examiner for Cook County. Doctor
Jones is board certified in anatomic pathology, clinical pathology, and forensic pathology. She also
served as a professor of pathology at Chicago Medical School. In preparation for her testimony she
reviewed the decedent’s death certificate, his autopsy report, and the depositions of Dr. Bryant and
Dr. Derman. However she did not review the decedent’s medical record concerning resuscitation
efforts and she did not review Carrel’s deposition.
In Dr. Jones’ opinion, there was no indication that the decedent was alive when the food
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entered his lungs. She believed that the material found in the decedent’s lungs traveled from his
stomach to his lungs by agonal aspiration, which occurs in the process of death when the sphincters
(valves) which keep the food in the stomach fail and allow passage of food into the esophagus and
the trachea. The food could also be forced into the trachea during resuscitation efforts. Dr. Jones
also testified to her belief that the decedent did not choke at all, because no bolus of food was found
obstructing his airway. It was her opinion that when the decedent died, the sandwich he was given
was “long eaten.” She testified that she was unable to form an opinion on the cause of death, which
could have resulted from the decedent’s heart disease or a stroke or a heart attack
On cross-examination, Dr. Jones admitted that she had not known that the medical record
established that it had been difficult to place a breathing tube in the decedent and when air was forced
through the tube, a large amount of food came up. She also admitted that a patient with a swallowing
disorder who was eating a turkey sandwich and began to have difficulty swallowing could have food
impacted in his trachea which would cause difficulty with placement of a breathing tube during
resuscitation efforts. But she testified that she could not identify this as the cause of death because
she had not reviewed the deposition of Carrel. Even when advised of Carrel’s testimony that he
observed the decedent begin to choke while eating a turkey sandwich, she testified that Carrel may
have simply been misinterpreting the signs of the decedent having a heart attack. She also testified
that it was possible that while the decedent was eating his sandwich and talking with Carrel, he
experienced a stroke or some sort of cardiac problem. However, she admitted that based on the
information which she had reviewed, she could not give an opinion that a particular cause of death
was more probably true than not.
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Nurse Annette Nancy Bannon testified that she was one of the nurses who responded to the
emergency concerning the decedent. She acted as the recorder during the resuscitation efforts,
writing down what occurred. When the emergency team arrived, the decedent was not breathing and
did not have a pulse. The team administered CPR and also attempted to place a breathing tube into
the decedent in order to administer oxygen to him. Large amounts of food particles were suctioned
from him, but none of them was recognizable as a bolus of food. Several attempts of the Heimlich
maneuver did not succeed in removing the blockage. Eventually, medical personnel were able to
place the breathing tube and administer oxygen while attempting to restart the decedent’s heart by
shocking it. But they could not restart the heart, and within 21 minutes of placing the breathing tube,
the decedent was declared dead.
After its deliberations, the jury entered a verdict for the plaintiff in the amount of $500,000
and the trial court entered judgment on that verdict. This appeal ensued.
ANALYSIS
Although the defendants raise several issues, their primary contention on appeal, which they
strenuously argued during oral argument, is that a lay witness, decedent’s hospital roommate, Lamont
Carrel, should not have been permitted to testify that he believed the decedent began choking while
the decedent was eating a sandwich. Defendants contend that this testimony constituted a medical
opinion that should only have been presented by an expert witness, and Carrel lacked that expertise.
Therefore, they argue, it was reversible error for the trial court to allow this testimony into evidence.
This contention constitutes the gravamen upon which the defendants base most of their remaining
arguments.
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We first address the issue of Carrel’s testimony since the remaining issues build upon the
foundation that it was error to allow Carrel’s testimony of what he observed. As we have previously
noted, the defendants made no in limine or contemporaneous objection to Carrel’s testimony. They
did not seek to voir dire him, nor did they move to bar his testimony after it was completed. Instead,
the defendants first raised the objection to Carrel’s testimony after the jury reached a verdict in the
plaintiff’s favor. Thus, the defendants failed to properly preserve the issue and have forfeited it for
purposes of appeal. Wheeler-Dealer, Ltd. v. Christ, 379 Ill. App. 3d 864, 870, 885 N.E.2d 350, 356
(2008).
However, we also note that the record establishes that the plaintiff presented ample evidence
to support the jury’s verdict. The plaintiff introduced evidence, which the jury apparently believed,
that both Dr. Bhatia’s order that the decedent be monitored while eating and the request by the
decedent’s wife that he be assisted with eating were disregarded by the nursing staff. In fact, the jury
clearly concluded that the decedent was not monitored while he was eating, despite a history of
choking while eating. His hospital roommate, Carrel, whose testimony was not objected to by the
defendant’s until after the verdict, said that he saw the decedent choke on the sandwich and then
begin struggling to breathe. Within minutes, hospital personnel attempted to clear the decedent’s
airway so that he could breathe, including repeated attempts of the Heimlich maneuver. Only after
14 minutes did they succeed in clearing his airway, after suctioning out large amounts of food. He
was pronounced dead within less than one hour of the start of these resuscitation efforts. Expert
testimony presented by the plaintiff established that the treatment given to the decedent deviated from
the appropriate standard of care. The plaintiff also presented expert opinion that the decedent died
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as the result of choking on his sandwich. The jury heard the testimony of the plaintiff’s experts and
the testimony of the defense experts. The jury obviously found the plaintiff’s experts more credible.
There is nothing irregular or erroneous about the finding by the jury. Indeed, that is precisely what
our jury trial system is designed to do.
The defendants also assert that they were denied a fair trial when, at the close of the plaintiff’s
case, the trial court summarily denied the defendants’ motion for a directed verdict without allowing
them to present argument on their motion. In light of our determination that the plaintiff presented
ample evidence to prove her case, we need not address that argument further.
The defendants next assert that the trial court erred in giving the jury IPI Civil (2006), No.
31.10 concerning the jury’s ability to assess damages for the decedent’s “conscious pain and
suffering” which resulted from the defendants’ negligence. The entire instruction states:
“If you decide for the plaintiff on the question of liability, you
must then fix the amount of money which will reasonably and fairly
compensate the estate for any of the following elements of damages
proved by the evidence to have resulted from the [negligence] of the
defendant[s] during the period between the time of the decedent’s
injuries and the time of his death, taking into consideration the nature,
extent, and duration of the injury:
The conscious pain and suffering experienced as the
result of the injuries.
Whether any of these elements of damages has been
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proved by the evidence is for you to determine.” IPI
Civil (2006), No. 31.10.
The defendants again contend that as a lay witness, Carrel was not qualified to testify to what he
observed of the decedent’s experience immediately before death, because that goes directly to the
conscious pain and suffering of the decedent. But as we have noted in our discussion of the first issue
raised by the defendants, this objection was not made when Carrel offered his testimony at trial.
Thus, the defendants have forfeited this issue. Wheeler-Dealer, Ltd. 379 Ill. App. 3d at 870, 885
N.E.2d at 356 (2008).
The defendants also contend that the plaintiff’s nurse expert, Pamela Collins, should not have
been permitted to testify that the nursing staff deviated from the appropriate standard of care by not
monitoring the decedent while he was eating his sandwich. To the extent that this contention is based
upon nurse Collins relying upon the testimony of Carrel, as we have already found, any objections
to that testimony have been forfeited. Furthermore, the defendants’ own witness, nurse Badmus,
who was the nurse responsible for decedent’s care, admitted that if there had been an order to
monitor the decedent while eating, the failure to do so was a deviation from the appropriate standard
of care. Dr. Bhatia testified that he gave such an order and the jury obviously believed him.
Additionally, nurse Badmus’ own notation in the decedent’s record stated that the decedent’s wife
had requested the same monitoring because of the decedent’s swallowing difficulties. The record
does not disclose why Clara’s request was disregarded by nurse Badmus.
The defendants also contend that the jury’s verdict for the plaintiff was contrary to the
manifest weight of the evidence and therefore the case should be reversed and remanded for a new
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trial. Again, this argument is based on the defendants’ challenge of Carrel’s testimony and the
plaintiff’s expert testimony based on Carrel’s observations, and therefore the issue has been forfeited.
The defendants also suggest that the testimony of their expert, Dr. Goldstein, that the decedent died
as a result of aspirating food, not from choking on food which he had just swallowed, negates the
plaintiff’s case. But we note that the plaintiff’s first amended complaint was based upon the
negligence of the defendants in failing to monitor the decedent while he was eating despite explicit
directions from the admitting physician and an additional warning, from the decedent’s wife, that the
decedent had difficulty swallowing. The complaint alleged that the decedent died as the result of this
negligence, specifically, failure to monitor him. There was sufficient evidence for the jury to conclude
that the decedent choked on a sandwich which he ate without any supervision. But there was also
evidence that it was aspiration of stomach contents which caused the decedent to stop breathing.
This evidence was also sufficient to meet the plaintiff’s burden of proof in accordance with the
complaint. In summary, the plaintiff’s complaint was not dependent upon the decedent having
choked on food. The underpinning of the plaintiff’s complaint was the failure to supervise the
decedent while he ate. The plain inference which the jury could and apparently did draw was that
while the decedent was engaged in unsupervised eating, which should have been supervised, an event
occurred which resulted in his death. Accordingly, we hold that the evidence at trial was sufficient
to allow the jury to conclude that the plaintiff met her burden of proof, despite the testimony of the
defendants’ experts. Alternatively, expert testimony was also presented that aspiration caused by
choking could have contributed to the decedent’s death.
The defendants have also forfeited their claim that plaintiff’s expert, Dr. Derman, was not
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qualified to testify as an expert and, in particular, that his testimony in violation of Supreme Court
Rule 213 (210 Ill. 2d R. 213) should have been stricken. Contrary to the defendants’ contention in
oral argument before this court, which the defendants later attempted to retract in a postargument
motion, we find no motions in limine filed by the defendants in the record on appeal, nor has defense
counsel cited to specific pages of the record where the defendants filed a motion in limine concerning
Dr. Derman’s testimony. Further, the defendants fail to allege that they challenged Dr. Derman’s
credentials, expertise, or violations of the rules of which they complain on appeal. Their appellate
briefs fail to refer this court, in instances too numerous to cite, to any specific pages in the record
where these objections were made in the trial court. Thus the defendants have forfeited these issues.
Engle v. Foley & Lardner, LLP, 393 Ill. App. 3d 838, 854, 912 N.E.2d 715, 728-29 (2009).
The defendants also complain that the plaintiff’s expert witness, Dr. Bryant, violated Illinois
Supreme Court Rule 213 (210 Ill. 2d R. 213) by testifying to opinions not disclosed before trial. Dr.
Bryant testified that on the morning of trial, the plaintiff’s attorneys showed him a record suggesting
that a bolus of food had been removed from the decedent during resuscitation attempts. As noted
earlier, the trial court initially denied the defendants’ objections to this testimony. When the
defendants later renewed their objections, the trial court sustained those objections, struck the
testimony of Dr. Bryant on that point and instructed the jury to disregard the stricken testimony.
Illinois law establishes that such actions by the trial court ordinarily suffice to cure prejudice arising
from inadmissible testimony. Adami v. Belmonte, 302 Ill. App. 3d 17, 27, 704 N.E.2d 708, 715
(1998); Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 780-81, 692 N.E.2d 1303, 1310-11
(1998). In light of the other sufficient evidence in this case, any error which may have resulted from
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the stricken testimony was clearly harmless. Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792,
801, 776 N.E.2d 840, 849 (2002).
The defendants also erroneously contend that it was impermissible for Dr. Bryant to testify
that choking on food could also cause regurgitation of food. The defendants claim that this testimony
was a violation of Rule 213. 210 Ill. 2d R. 213. We note, however, that the subject testimony
embraced the defendants’ theory that the decedent died when he aspirated his stomach contents. The
defendants contend that this opinion was not disclosed to them prior to trial. But in fact the record
establishes that defense counsel withdrew an objection to this testimony when it was demonstrated
that the witness had testified in a similar fashion in his pretrial deposition. Accordingly, we find no
error in the admission of Dr. Bryant’s testimony on this point.
Although the defendants contended during oral argument that the trial court erred in barring
them from presenting two special interrogatories to the jury, the record establishes that the defendants
voluntarily withdrew one of the proffered special interrogatories. The one interrogatory which the
defendants were barred from submitting stated: “Did [the decedent] choke and expire as a result of
a food bolus from the mouth while eating unattended?” The plaintiff objected to this interrogatory
because it presented only one possible cause of death, ignoring evidence that aspiration of stomach
contents could have contributed to that death. The trial court found that the interrogatory was not
one to which the jury could easily answer yes or no, given the complicated testimony presented
throughout the trial. The trial court went on to state:
“It’s very clear what the jury is going to be doing. It’s going to be
asked to determine whether or not this individual was left unattended
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and died as the result of that and everybody can argue from the
evidence that has been given and this [interrogatory] will complicate
that decision on that issue which is the central issue in the case for the
jury to decide. It is not a simple statement of fact and I find that it will
complicate matters for the jury’s decision on the ultimate issue in the
case[;] therefore, I’m not going to be giving it.”
A trial court may properly deny an interrogatory that is misleading or confusing. Blakey v. Gilbane
Building Corp., 303 Ill. App. 3d 872, 882, 708 N.E.2d 1187, 1194 (1999). We hold that the trial
court properly denied this interrogatory on both grounds.
The defendants also complain of what they deem to be multiple improper comments by the
trial court which they contend subjected them to prejudice in the eyes of the jury. The defendants
failed to move for a mistrial on that basis and consequently have forfeited this issue. Wheeler-Dealer,
Ltd., 379 Ill. App. 3d at 870, 885 N.E.2d at 356; see People v. Harbold, 262 Ill. App. 3d 1067, 1070,
635 N.E.2d 900, 903 (1994) (the defendant’s failure to move for a mistrial based on prosecutorial
misconduct waived, or forfeited, his right to block retrial upon a finding by the reviewing court that
reversible error had occurred). Furthermore, our review of the record establishes that the trial court
was evenhanded in ensuring that questioning by either side did not wander far afield from the issues
in the case. Often the conduct of the attorneys required the trial court to refocus the questioning on
the issues at hand.
Lastly, the defendants contend that they should have been permitted to impeach Carrel with
a prior conviction. The misdemeanor conviction in question occurred two years after Carrel gave his
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pretrial deposition relating to this case. In deciding whether to permit the use of the conviction for
impeachment purposes, the trial court was able to take into consideration several factors. The trial
court discussed its reasoning and the balancing test which it applied in denying the defendant’s motion
to impeach Carrel with the prior conviction. The trial court stated in part:
“THE COURT: *** I think further factors to be considered by
me in determining whether the probative value outweighs unfair
prejudice or vise versa concerns just what role he plays here since he’s
not a party, he’s an occurrence witness apparently having no stake in
the outcome of this case, that is a factor for me to consider as to
whether or not we let the facts and the rest of the cross-examination
of him, let the jury determine credibility based upon that rather than
on something that occurred well after the facts of this case and as you
said, Mr. Strelecky, well after he had given certain statements
concerning this, so I will take this under advisement and make a ruling
before he’s called to testify.”
The fact that Carrel was a disinterested party in the lawsuit was clearly a major factor in the
trial court’s decision to prevent the introduction of Carrel’s misdemeanor conviction. He was the
decedent’s roommate in the hospital and the only person who actually witnessed what occurred.
Carrel had met the decedent only shortly before the decedent’s death. Carrel had no stake in the
outcome of the trial. The trial court ruled that disclosure of Carrel’s misdemeanor conviction, which
occurred two years after he had given his pretrial deposition, would have served no useful purpose.
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The court explained its reasoning on the issue prior to ruling, stating in pertinent part:
“THE COURT: Concerning the use of any prior conviction of
Mr. Carrell, I have reviewed the case law. I have also reviewed the
situation in terms of a balancing test of the probative value versus the
unfair prejudice. I believe since his testimony was preserved by way
of deposition previously before any – before he was placed on
supervision for this event, since the conviction by way of guilty
employee was for something called a deceptive practice, while that
might be a crime of dishonesty, even though it was a misdemeanor,
the individual was placed on supervision and the conviction could
ultimately be expunged by successful completion of supervision
because the testimony was previously preserved well before this plea
of guilty, because there are several other factors available to the
defense to question the accuracy and/or credibility of this witness, I
believe in balancing this test – in the balancing test that I have
performed, it would be inappropriate to allow the use of this
conviction in cross-examination of Mr. Carrell and, therefore, I’m
going to limit the defense from doing that.”
It is within the sound discretion of the trial court to balance the probative value of a prior conviction
against its prejudicial impact. The trial court clearly took the relevant factors into consideration in
performing a balancing test regarding the admissibility of Carrell’s prior conviction. Knowles v.
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Panopoulos, 66 Ill. 2d 585, 587-88, 363 N.E.2d 805, 807 (1977). We find no abuse of discretion in
the trial court’s decision to bar the defendants from impeaching Carrel with his prior misdemeanor
conviction.
We are compelled to comment on the arguments and materials provided to us for review by
the defendants. The defendants’ briefs are replete with omissions of record citations; with record
indexes that omit citations to trial witnesses; and with omissions of critical facts upon which they base
some of their strongest appellate arguments. For instance, on appeal they continued to cite as error
the trial court’s initial refusal to grant their motion to strike certain testimony, when in fact the trial
court ultimately did strike the testimony and admonish the jury to disregard it. Even in oral argument,
in answer to specific questions from the bench, the defendants’ counsel assured this court that the
record contains the defendants’ motions in limine which underpins one of the defendant’s main
arguments, but counsel presented no page record reference, and we have not found any such motions
in the record. Supreme Court Rule 341 (210 Ill. 2d Rs. 341(h)(6), (h)(7)) requires that the parties
to an appeal cite to specific record pages in support of their statements of fact and their arguments.2
See generally Engle, 393 Ill. App. 3d at 854, 912 N.E.2d at 728-29; citing Mikrut v. First Bank of
Oak Park, 359 Ill. App. 3d 37, 51, 832 N.E.2d 376, 387 (2005). The supreme court rules that govern
2
Several weeks after oral argument, the defendants filed a motion attempting to “clarify”
their erroneous statements to this court in response to specific questions from the court during
oral argument. This court’s questions were focused upon one of the defendant’s arguments that
was clearly based on factual contentions not contained in the record. Defendants may not
retrospectively circumvent proper appellate procedure by submission of a tardy motion after the
case has been heard. We consider that motion within the resolution of the case and hereby deny
it.
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appellate practice are mandatory and must not be treated as mere suggestions. This court has
repeatedly warned appellate parties that they may not treat this court as a repository for facts and
arguments that are not supported by specific, accurate, record citations. It is not the responsibility
of this court to scour the record in search of facts that support the argument being advanced by a
party. Rather, it is the responsibility of the parties to conform to the requirements of the supreme
court rules and ascertain the accuracy of their facts and statements before presenting argument to this
court.
For the reasons stated, we affirm the judgment of the circuit court of Cook County.
Affirmed.
HOFFMAN and THEIS, JJ., concur.
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