Bloome v. Wiseman, Shaikewitz, Mc-Givern, Wahl, Flavin & Hesi, P.C.

JUSTICE KUEHN,¹

specially concurring:

I concur in all aspects of the majority opinion. I write separately to respond to issues raised in the dissent regarding the stipulation.

By underscoring the effect of a stipulation, the dissent has deemphasized the trial court’s discretion to set aside a stipulation to further the ends of justice. Brink v. Industrial Comm’n, 368 Ill. 607, 609, 15 N.E.2d 491, 492 (1938). I agree that a stipulation may effectively withdraw an issue from further consideration. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 462, 605 N.E.2d 493, 506 (1992). However, a stipulation’s conclusive effect does not obstruct the trial court’s discretion to set aside that stipulation should justice so require. Furthermore, whether a stipulation is described as a stipulation or a judicial admission does not alter the trial court’s discretion to set it aside.

The dissent further ignores the fact that the defendants were the ones who kept advancing the stipulation to intentionally cap liability. The defendants were aware that Dr. Falconer had an additional $5 million in applicable insurance coverage. It is true that no evidence of Dr. Finch’s salary, assets, liabilities, likelihood of continued employment, health, or age was introduced at trial. But no specific financial information was heard during the trial because defense counsel did not want it heard. The benefit defendants derived from this stipulation is obvious. The stipulation effectively kept the jury from learning about the defendants’ finances. The benefit plaintiff derived from this stipulation is not so apparent.

The dissent would burden a plaintiff with the task of proving solvency of a defendant in an amount not yet determined by the jury. Proving every intimate financial detail of an underlying physician’s life in order to achieve the optimum cap that the dissent’s reading of Goldzier v. Poole would impose is illogical. The language of Goldzier was never intended to require such a level of proof. If it was, we should overrule it. Furthermore, I seriously doubt that defense counsel would want a jury to hear complete details of their clients’ financial portfolios.

In reviewing the trial court’s decision to relieve the parties of the stipulation, we must bear in mind that the verdict does not reflect knowledge of the $2 million stipulation. The jury was never advised that the parties entered into a stipulation. We must also remember that the court exercised its discretion to set aside the stipulation before the trial court entered judgment on the jury’s verdict.

During trial, liability expanded to include Dr. Falconer and St. John’s Hospital, thereby expanding applicable insurance coverage to $7 millón. The dissent would cap plaintiff’s recovery to $2 million. Plaintiff should not be limited to half a cup of justice. He is entitled to the full measure of justice awarded him because of his medical malpractice attorneys’ negligence. I fail to see how the trial court abused its discretion when its exercise of discretion was based on truth and served to produce a just result. Given the circumstances, I opt for truth and justice over the sanctity of stipulations.

1 Justice Kuehn was substituted for one of the original panel members, Justice Lewis, who retired effective August 1, 1995.