Lange v. Freund

SIXTH DIVISION
September 1, 2006
No. 1-03-0106
MICHAEL LANGE and LINDY LANGE, ) Appeal from the
Individually, and as Special ) Circuit Court of
Administrators of the Estate of ) Cook County
Baby Lange, )
)
)
Plaintiffs-Appellants, )
)
) No. 99 L 6143
v. )
)
)
MARY FREUND, )
) Honorable
) Carol Pearce McCarthy
Defendant-Appellee. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
Michael Lange and Lindy Lange sued Mary Freund for the
wrongful death of their unborn child, alleging that Freund's
negligent driving caused a collision between her car and the
Langes' vehicle, resulting in the loss of Lindy's five-week-old
pregnancy. Freund admitted negligence, but denied that the
collision was the cause of the unborn child's death. A jury
returned a general verdict in favor of Freund and, via a special
interrogatory, confirmed its finding that the loss of the Langes'
child was not caused by the accident. The Langes appeal,
alleging that numerous errors require a new trial. For the
reasons that follow, we affirm. In accordance with Supreme Court
Rule 23, portions of this opinion are nonpublishable; the
complete text of our disposition is provided in the nonpublished
1-03-0106
order issued simultaneously with this opinion.
BACKGROUND
Michael and Lindy Lange were driving to visit Lindy's
brother and sister-in-law in Davenport, Iowa on the evening of
September 5, 1997 when the vehicle of Mary Freund, approaching
from the opposite direction, made a left turn into their lane.
The vehicles collided, resulting in the total loss of the Langes'
car. While the record presented to this court reveals some
initial dispute about whether Mary or her husband, John Freund,
was driving their vehicle at the time of the accident, John
passed away shortly thereafter for reasons unrelated to the
collision and the parties have not pursued the dispute in this
proceeding. The Langes were taken by ambulance to a local
emergency room, where Lindy was briefly examined, but neither she
nor Michael was admitted to the hospital, and the record does not
suggest that either of the Freunds suffered injury.
On the date of the accident, Lindy was five weeks into a
pregnancy which had been achieved through in vitro fertilization.
The Langes returned to the Chicago area on the Sunday following
the accident and visited the offices of Lindy's treating
physician at the first available opportunity on the morning of
Monday, September 8. A test of Lindy's blood revealed that human
chorionic gonadotropin (HCG), a hormone which increases in rapid
and predictable levels in the bloodstream of an expectant mother
during a healthy pregnancy, was present in Lindy's system in an
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amount which was lower than normal for a pregnancy at her stage.
Lindy was tested every few days thereafter, and each test showed
HCG levels that indicated her pregnancy was not proceeding
normally. On September 29, an ultrasound showed that the Lange
baby's heart was no longer beating. The child showed no signs of
recovery thereafter, and on October 16, it was surgically removed
from Lindy's uterus.
The Langes filed an action in the circuit court of Cook
County in which Mary Freund admitted that her negligent driving
caused the collision. Issues regarding damages other than the
loss of Lindy's pregnancy were resolved prior to trial, leaving
the parties to present to the jury evidence on the presence or
absence of a causal link between the collision and the
miscarriage, and evidence of the damages recoverable as a result
of the death of an unborn child. In addition to the testimony of
Lindy and Michael, the Langes presented the expert testimony of
three physicians, each of whom concluded that Lindy's miscarriage
was caused by the accident. The Lange experts testified that the
forces acting upon Lindy's body when their vehicle slammed to a
sudden stop from a speed of more than 30 miles per hour were
sufficient to cause her internal organs to be shaken violently,
rupturing the blood vessels between the uterus and the placenta.
One of their experts also testified that the accident could have
caused the miscarriage by producing a surge of hormones which
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constricted Lindy's blood vessels, cutting blood flow to the
placenta. Freund presented one medical expert, who concluded
that the pregnancy had begun to show signs of difficulty before
the accident. Her expert testified that in healthy pregnancies,
HCG levels double each 48 hours, and that pregnancies which
failed to show this steady increase were almost certain to end in
miscarriage. He further testified that the HCG levels revealed
by Lindy's September 8 test were abnormally low not only for that
date but for the date of the accident, September 5. Since he had
never known HCG levels to rise normally, fall, then rise again,
he concluded that the postaccident HCG levels were no lower than
those on the date of the accident, and that they were lower than
normal before that date. Freund's expert testified that the size
of the fetus's sac was smaller than expected at the time of
Lindy's last preaccident examination and that she displayed none
of the bleeding or other signs of injury which would have been
consistent with traumatically-induced miscarriage; he concluded
that the accident was not the cause of the miscarriage. The
jury, in addition to returning a general verdict in favor of
Freund, also responded "No" to a special interrogatory: "Do you
find that the automobile accident of September 5, 1997
proximately caused the fetal demise on September 29, 1997." The
Langes now appeal, asserting numerous claims of trial error.
ANALYSIS
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I. Court Instruction On Number Of Witnesses
Immediately after closing argument, the trial court, on its
own motion, remarked: "I am going to interject one thing right
now. The number of witnesses on either side of the case is not
dispositive of the issues or the facts as you find them." The
Langes contend that the giving of this instruction was
sufficiently prejudicial to constitute reversible error.
In support of their contention, the Langes note that our
supreme court's committee on jury instructions in civil cases has
advised against such instructions: "The committee recommends that
no 'one witness against a number' instruction be given."
Illinois Pattern Jury Instructions, Civil, No. 4.06 (2000)
[(hereinafter IPI Civil (2000)]. The committee, in its notes to
the recommendation against giving such instructions, commented,
"The Illinois Supreme Court has held that it is for the jury to
determine to what extent each witness is credible, and that it is
error to give an instruction on that subject so worded that under
the circumstances of the case the jury might readily infer the
court believed the witnesses for one side to be more credible
than the witnesses for the other side. Walsh v. Chicago Rys.
Co., 294 Ill. 586, 595 (1920)." IPI Civil (2000) No. 4.06,
Comment. Though we are mindful of the foregoing, we do not agree
with the Langes' assertion that the committee's recommendation
and comments establish that the trial court's admonition in the
instant case was reversible error.
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Pattern instructions are presumed to be accurate statements
of Illinois law, and the jury is to be instructed using an
approved pattern form if the trial court determines that it is
applicable to the circumstances of the case. Luye v. Schopper,
348 Ill. App. 3d 767, 773 (2004). But pattern instructions are
not themselves law. Our supreme court has held that they "are
not exempt from challenge." Powers v. Illinois Central Gulf R.R.
Co., 91 Ill. 2d 375, 385 (1982). "There has not been any advance
approval of the IPI by this court. An instruction is approved or
rejected only after it has been judicially questioned and
considered." Powers, 91 Ill. 2d at 385. We have been made aware
of no Illinois precedent which may be construed as a blanket
prohibition of all instructions similar to that in the instant
case, or as a judicial analysis of the committee's recommendation
against such instructions. It is thus apparent that the
propriety of the trial court's instruction herein is not
conclusively determined by the recommendation and comments of the
supreme court's jury instruction committee.
Instructions to the jury, taken as a whole, must fairly,
fully, and comprehensively apprise the jury of the relevant legal
principles; a trial court will not be reversed for giving faulty
instructions unless they clearly misled the jury and resulted in
prejudice to the appellant. Schultz v. Northeast Illinois
Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002). In
the instant case, the trial court's instruction to the jury that
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the number of witnesses on either side of the case is not
dispositive was not an inaccurate or misleading statement of
Illinois law. "Evidence, and its preponderance, is to be
determined from its value and weight, not from the mere number of
witnesses and exhibits on one side or the other." Thornton v.
Rhodus Mobile Homes, Inc., 104 Ill. App. 3d 869, 872 (1982). See
also Hardware State Bank v. Cotner, 55 Ill. 2d 240, 252 (1973).
Indeed, the supreme court committee on jury instructions long
approved a pattern instruction which advised that "[i]n deciding
whether any fact has been proved, it is proper to consider the
number of witnesses testifying on one side or the other as to
that fact, but the number of witnesses alone is not conclusive if
the testimony of the lesser number is more convincing." IPI
Civil No. 2.07 (3d 1990); Johnson v. Equipment Specialists, Inc.,
58 Ill. App. 3d 133, 143 (1978).
In changing its stance on such instructions, the supreme
court committee, notably, characterized its amended viewpoint as
a recommendation, and did not suggest that Illinois law had
changed. Instead, as outlined above, it emphasized the possible
prejudicial effect of a court's suggestion that the witnesses of
one party were more credible than those of the opponent, citing
Walsh v. Chicago Rys. Co., 294 Ill. 586, 595 (1920), and
recommended against the injection of such prejudice into civil
trials.
Walsh, however, did not suggest that all "one witness
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against a number" instructions were inherently prejudicial, or
that all such instructions constituted reversible error. In
Walsh, the jury was instructed: "'The court instructs the jury
that the testimony of one credible witness may be entitled to
more weight than the testimony of many others, if, as to those
other witnesses, you have reason to believe, from the evidence
and all the facts before you, that such other witnesses have
knowingly testified untruthfully as to any material fact or
circumstance and are not corroborated by other credible witnesses
or by circumstances proved in the case.'" Walsh, 294 Ill. At
595. The Walsh court found the instruction to be sufficiently
prejudicial to require reversal of a jury verdict against the
defendant, who had produced more witnesses to an accident than
the plaintiff, but in so doing, the court focused on the
instruction's explicit commentary on the credibility of the
witnesses: "We find nothing in the testimony that would serve as
a basis for an intimation to the jury that any of the witnesses
for the [defendant] had knowingly or willfully testified
falsely." Walsh, 294 Ill. at 596.
At the same time, however, the Walsh court acknowledged the
possibility that some such instructions would not be similarly
suggestive, and would thus be permissible: "An instruction of the
character of the one here in question can only be offered when so
worded that it does not single out witnesses from one side or the
other, so that it might apply to any witness in the case, without
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reference to whether he was called by plaintiff or defendant."
Walsh, 294 Ill. at 596. Walsh thus disfavors instructions which
call into question the credibility of one party's witnesses, but
does not suggest that an instruction regarding the inconclusive
nature of the number of witnesses is in all cases sufficiently
prejudicial to constitute reversible error.
Accordingly, since the committee's position on "one against
a number" instructions has not yet been adopted by courts of this
state, since its position is a recommendation, rather than a
purported statement of Illinois law, since the supreme court
authority cited as the basis for the committee's recommendation
does not prohibit all "one against a number" instructions, and
since the court's instruction does not include the commentary on
credibility found by the Walsh court to be objectionable, we
conclude that the committee recommendation, in itself, is
insufficient to establish that the trial court's statement to the
jury was reversible error.
We therefore analyze the instruction in accordance with
general principles of review of nonpattern instructions in
Illinois. The trial court's instruction in the instant case did
not misstate Illinois law, and remained within the constraints
established by our supreme court for non-pattern instructions: it
was "simple, brief, impartial, and free from argument." 177 Ill.
2d R.239(a). It made none of the credibility commentary
addressed by the Walsh court, did not make reference to either
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party, and did not suggest that the number of witnesses was not
to be considered.
We believe that the court's instruction was an appropriate
communication to the jury in light of the arguments made by the
Langes' counsel in closing and rebuttal. Those arguments
repeatedly suggested that the number of expert witnesses
presented by the parties should determine the outcome of the
fact-finding process:
"Getting back to the probabilities. Three people
against one. Three experts saying it was the collision
against Dr. Zinaman. You take three people, 75
percent, against one expert, 25 percent, who should
win? We should win. And that is what more probably
true than not true means. You can consider how many
people testified on one side as opposed to the other.
You can consider that in determining who should win.
* * *
All you have to determine is more probably true
than not true, slightly - - have we slightly proved
it's more probably true than not true that this
collision caused the loss of this pregnancy and what
the damages are. And I think it should be very easy.
And the reason I think it should be very easy is
because now that you know the burden of proof, now that
you know it is not a possibility, now that you know our
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burden is not way up here and that it is just a little
bit ahead, putting three against one in context, how do
we lose? And that is my point. We shouldn't lose.
* * *
You are also going to be asked to complete what is
known as another question in addition to the verdict
forms. And that question is going to ask you whether
or not you found that the collision of September 5th of
1997 was the proximate cause of the fetus's demise.
You need to answer that question yes. That is an
additional question you have to answer. Why should you
answer that question yes? Because if you apply that
burden of proof, more probably true than not true,
three people against one, we should win.
* * *
And when [defense counsel] talked about the burden
of proof, he just totally glossed over the three people
on one side testifying against one person on this side.
That is more probably true than not true. Three
people saying it was the collision to one person saying
it was not the collision, three against one, 75 percent
to 25 percent. More probably true than not true. We
just have to be a little bit ahead of them in terms of
proof, and we should win this case.
* * *
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That is why the three against one becomes so
important because in order to find in favor of the
Defense, you would have to find that Dr. Zinaman
standing alone, his testimony would outweigh the other
three people. It is kind of like that basketball game
that we were describing. The Bulls have 100 and the
opposing team has 99, the Bulls win. We have three, the
opposing team has one. Who should win? We should.
* * *
Three against one. More probably true than not
true. We've proven it."
In light of the repeated suggestion that the number of
witnesses testifying in favor of the Langes should decide the
case in their favor, we cannot find that the trial court misled
the jury or prejudiced the Langes with its simple, accurate and
argument-free statement that the number of witnesses was not to
be considered conclusive. We accordingly reject the Langes claim
that the court's statement constituted reversible error.
II. Jury Selection - Dismissal Of Incomplete Panel
Before jury selection began, the trial court informed the
parties that if a panel of four jurors had not been completed and
sworn at 4:30 p.m., all jurors on that panel would be dismissed,
and the panel would be completely refilled at the beginning of
the next court day. Neither party objected to this rule.
When jury selection began, the court followed its rule as it
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had been announced: only three jurors out of the second panel of
four had been selected by the close of the day, and those three
jurors were dismissed. Counsel for the Langes asked, "You're
dismissing all these people, judge?" The trial court responded,
"I told you at the end of the day that is what it is. If I don't
have a panel, it is only the people who are sworn. So we start
over and you each have one challenge." Neither party objected at
that time, and neither party objected when jury selection resumed
and the remainder of the jury was impaneled.
The Langes now claim that the dismissal of three jurors from
the incomplete second panel was reversible error. They contend
that they were unable to select a fair and impartial jury because
the three peremptory challenges they exercised to remove jurors
from the second panel were not reinstated when selection of that
panel resumed.
Since the Langes did not object to the court's announcement
of its rule, to its application of the rule at the time the three
jurors from the incomplete second panel were dismissed, or to its
assessment of the parties' remaining number of peremptory
challenges, they have waived the issue. Branum v. Slezak
Construction Co., Inc., 289 Ill. App. 3d 948, 959-60 (1997).
Recognizing this fact, the Langes argue that we should consider
the issue under the plain error doctrine, which allows us to
review claims of error not properly preserved at trial. But this
doctrine is applied in civil cases only where the act complained
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of was a prejudicial error so egregious that it deprived the
complaining party of a fair trial and substantially impaired the
integrity of the judicial process itself. Gillespie v. Chrysler
Motors Corp., 135 Ill. 2d 363, 377 (1990).
In the instant case, however, the Langes have failed to make
even the threshold-level showing that the actions they complain
of were prejudicial. They contend that because the jurors they
selected for the second panel were dismissed, the three
peremptory challenges they used to select that panel were
improperly deprived of their impact. Illinois reviewing courts
have not shared this view. "The right of peremptory challenge is a right to
exclude jurors, not to select them. It enables a party to say who shall not try his case,
but it does not enable him to select the particular jurors by whom he wishes his case
tried." Schultz v. Gilbert, 300 Ill. App. 417, 422 (1939). Prejudice in the jury
selection process is not shown by the mere assertion that a party
would have preferred different members of the jury; Illinois
courts have instead required a showing that a party was forced to
accept a juror that was objectionable and was unable to excuse
that juror due to the lack of peremptory challenges. O'Donnell
v. Holy Family Hospital, 289 Ill. App. 3d 634, 649 (1997); Snyder
v. Poplett, 98 Ill. App. 3d 359, 365 (1981). The Langes ended
jury selection in the case at bar with one unused peremptory
challenge, have not offered any suggestion that any of the jurors
on the second or third panels were objectionable in any way, and
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have not demonstrated that the method of selecting their jury
resulted in any outcome recognized by Illinois law to be
prejudicial. We therefore conclude that even if the Langes are
spared the impact of their failure to preserve this issue for
review, they have presented no basis for reversal of the verdict
in favor of Freund.
III. Jury Selection - Striking of "Accepted" Juror
The material in this section and sections IV through VII is
nonpublishable pursuant to Supreme Court Rule 23.
The Langes also argue that the trial court erroneously
permitted Freund to cross-examine their expert witnesses with
questions about their level of certainty about the cause of the
miscarriage: they claim that the trial court erred in allowing
Freund to ask their experts if circumstances other than the
accident were possible causes of the loss of the child and in
allowing her to ask them if they were certain that problems with
fetal development had not started before the accident.
"It is permissible for a medical expert to testify
concerning his or her opinions in terms of possibilities or
probabilities." Matuszak v. Cerniak, 346 Ill. App. 3d 766, 772
(2004). In Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 979
(1998), we rejected the contention that a trial court errs by
permitting cross-examination of an expert about possible
alternative causes of injury. We find no basis for departure
from the Wojcik court's approach, and accordingly reject the
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Langes' identical contention in the case at bar.
We also reject the Langes' contention that the trial court
erred in allowing Freund to ask their experts on cross-
examination whether they were "certain" that the pregnancy was
progressing normally in the days immediately prior to the
accident. Questioning of the certainty of the direct testimony
of a witness is, in our view, well within the boundaries of
potentially permissible cross-examination, subject to the trial
court's discretion; such questioning has been routinely accepted
by this court in the examination of expert and lay witnesses.
See Downing v. United Auto Racing Ass'n, 211 Ill. App. 3d 877,
888 (1991); Collum v. Fred Tuch Buick, 6 Ill. App. 3d 317, 320
(1972). Accordingly, although a "reasonable degree of medical
certainty" is the minimum threshold of assuredness required of a
competent medical expert opinion (Hunter v. Chicago & North
Western Transportation Co., 200 Ill. App. 3d 458, 473 (1990)), we
are aware of no viable precedent which prohibits either the
expression of a greater degree of conviction or cross-examination
questions about whether that greater degree of conviction is
present.
The Langes cite Skalon v. Manning, Maxwell & Moore, Inc.,
127 Ill. App. 2d 145, 159 (1970) for the proposition that "it is
error to allow an expert to give an opinion as an absolute
certainty on the cause of one's injury." While that principle
was indeed cited by the Skalon court as the holding of Turnbow v.
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Hayes Freight Lines, Inc., 15 Ill. App. 2d 57, 61-62 (1957), we
believe that it cannot be viewed as an accurate statement of
current Illinois law.
The Turnbow court relied upon a premise long prevalent in
Illinois jurisprudence: that conclusive expert testimony on an
ultimate issue in a contested action was prohibited because such
testimony would invade the jury's province as the finder of fact.
Illinois courts expressed concern that "direct and positive
testimony" by an expert on an ultimate issue would conclusively
decide the question, thereby leaving the jury with "nothing left
to do but to proceed to award large damages." Fellows-Kimbrough
v. Chicago City Ry. Co., 272 Ill. 71, 78 (1916). Mindful of that
premise, our courts insisted that expert testimony on a case's
ultimate factual issue be expressed equivocally, and not with
certainty. Santiemmo v. Days Transfer, Inc., 9 Ill. App. 2d 487,
497 (1956).
Our supreme court has since disavowed this principle,
however, explaining that a jury's province as factfinder is not
impermissibly invaded even by expert testimony expressed in
absolute terms, since jurors remain free to disbelieve and
disregard such testimony. Zavala v. Powermatic, Inc., 167 Ill.
2d 542, 545 (1995).
In Richardson v. Chapman, 175 Ill. 2d 98, 107-108 (1997),
the court, reviewing a traditional requirement of neutral,
inconclusive actuarial expert testimony, found that such
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requirements, because they were mere products of the disfavored
prohibition against ultimate issue testimony, were no longer
viable. The Richardson court's analysis is dispositive of the
Langes' argument in the instant case. Although medical experts
must at least meet the "reasonable degree of medical certainty"
threshold to provide a competent, admissible opinion, Illinois
law no longer bars the expression of that opinion in more
conclusive terms. The trial court was therefore vested with the
discretion to allow cross-examination about the degree of
certainty of the Langes' medical experts. Finding no suggestion
of abuse of that discretion, we reject the Langes' contention
that permission of cross-examination on the subject was
reversible error.
IX. Prejudicial Trial Court Actions
The Langes allege that various trial court actions created
sufficient prejudice against them in the minds of the jury that
the verdict against them must be reversed. We find none of the
cited actions, singularly or in the aggregate, to be
justification for such relief.
The first action raised by the Langes is the trial court's
method of modifying one of the damages instructions they offered
for presentation to the jury. After the instruction was read to
the jury, the court explained that language found to be
inapplicable to the case and redacted from one paragraph of the
instruction had not been similarly removed from another
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paragraph. Before giving the written instructions to the jury,
the court blacked out the inapplicable language with a pen. The
Langes first argue that this editing was prohibited by the Code
of Civil Procedure (735 ILCS 5/2-1107 (West 2002)), which,
according to their brief, states that a trial court "shall in no
case, after instructions are given, clarify, modify or in any
manner explain them to the jury . . . unless the parties agree
otherwise." The Langes apparently recognize that the four words
omitted from their brief's statutory citation are fatal to this
argument: the statute indeed prohibits clarification,
modification or explanation of instructions "otherwise than in
writing" unless the parties agree. Since the modification
complained of here is clearly in writing, the Langes' statutory
argument on this issue merits no further discussion.
The Langes' next objection to the court's written
modification of the instruction is that since it was identified
as a plaintiffs' instruction, the handwritten alteration "showed
contempt" for them and their attorneys. In People v. Foster, 288
Ill. 371 (1919), instructions were edited by drawing lines
through the inapplicable language, but the edited words remained
clearly legible. Our supreme court did not find such editing to
be prejudicial. "[S]o far as we are advised a case has never
been reversed solely because the instruction had been handed to
the jury as modified by inserting or striking out and without
being re-written." Foster, 288 Ill. at 383. "[A]ny modification
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of this kind not necessarily misleading ought not to reverse the
case." 288 Ill. at 383. The Langes have cited no precedent for
departure from the Foster court's approach, and our research has
revealed none. Furthermore, the Langes do not contend that the
instruction, as modified, was an incorrect or misleading
statement of Illinois law. We therefore adhere to the Foster
court's analysis and conclude that hand-editing of the
instructions submitted to the jury was not reversible error.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
Affirmed.
TULLY and O'MALLEY, JJ., concur.
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