MEMORANDUM ORDER
MARY PAT THYNGE, United States Magistrate Judge.
I. INTRODUCTION
Plaintiff Masimo Corporation ("Masimo") and defendants Philips Electronics North American Corporation and Philips Medizin Systeme Böblingen GMBH (collectively, "Philips") manufacture competing products in pulse oximetry. Pulse oximetry allows for non-invasive measurement of the oxygen levels in a medical patient's hemoglobin.
Generally, pulse oximetry operates via a sensor placed over a thin section of a patient's body, such as the fingertip or earlobe of an adult, or the foot of an infant. The sensor emits red and infrared light through a cross-section of the patient's tissue and measures the amount of light absorbed. Using various algorithms, a monitor then processes the signal and calculates the patient's oxygenation level. Pulse oximtery systems are standard equipment in many clinical settings, either as stand-alone devices, or more commonly, as components of integrated multi-parameter patient monitors which track pulse, temperature, and other physiological vital signs.
II. BACKGROUND
On February 3, 2009, Masimo filed a complaint against Philips alleging infringement of a number of Masimo's pulse oximetry-related patents. Masimo filed an amended complaint on May 12, 2009. In the amended complaint, Masimo alleges that Philips' production, use, and sale of pulse oximeters incorporating Philips' "Fourier Artifact Suppression Technology" as well as Philips' IntelliVue line of patient monitors infringe 14 of Masimo's patents. Regarding eight of these patents, Masimo alleges that Philips' infringement is willful, deliberate, and intentional because Philips has had notice of the patents and the alleged infringement. Masimo requests monetary damages and seeks to enjoin Philips from further production, use, or sale of infringing products.
Philips answered the complaint on June 15, 2009. In their answer, both Philips North America and Philips Medizin deny all allegations of infringement citing 12 defenses including, among others, invalidity of Masimo's patents, prosecution history estoppel, laches, unclean hands, patent misuse, and implied license. Philips North America concurrently filed counterclaims against Masimo. According to Philips North America, Masimo has infringed 10 of Philips' patents through the production, use, and sale of various Masimo monitors, boards, sensors, and oximeters using patented Philips technology. Regarding six of these patents, since Masimo has had notice of the patents and the infringement, Philips North America alleges that Masimo's infringement is willful, deliberate, and intentional. Philips North America requests monetary damages and, for 8 patents, seeks injunctive relief to prevent Masimo from further production, use, or sale of infringing products.
Philips North America's counterclaims also include seven antitrust claims focusing on Masimo's purported anticompetitive restrictions in its licensing agreements; its allegedly improper exclusion of competition in the sensor and patient cable markets; an anticompetitive settlement agreement stemming from a 2006 infringement suit with licensee Nellcor; and claims of exclusionary pricing and bundling practices designed to lock hospitals into Masimo pulse oximetry products. Masimo filed its answer to Philips North America's counterclaims on July 9, 2009, asserting its own counterclaims and defenses. On August 3, 2009, Philips filed its answer to Masimo's counterclaims.
On August 7, 2009, Masimo filed a motion to bifurcate and stay discovery on Philips North America's antitrust counterclaims, which this court granted on March 11, 2010. In its decision, this court found that bifurcation would assist in juror comprehension and increase efficiency without substantial prejudice to either party. This court also stayed discovery concerning Philips North America's antitrust counterclaims, finding that a stay would conserve economy because a trial on Masimo's patent claims could potentially eliminate or simplify Philips North America's antitrust counterclaims. A motion for reconsideration filed by Philips was denied on April 19, 2010, and Judge Farnan denied Philips' objections to this court's order on July 15, 2010.
On July 30, 2010, Philips filed a motion to bifurcate and stay discovery on patent damages and a brief in support thereof. In its motion, Philips requests bifurcation of the parties' patent damages claims, trial to be scheduled on patent damages to follow trial on the antitrust and patent misuse claims, and a stay of the remaining damages-related discovery until antitrust discovery proceeds. Masimo filed an answering brief on August 27, 2010, to which Philips filed a reply on September 8, 2010. This is the court's decision on Philips' July 30, 2010 motion.
Pursuant to 28 U.S.C. § 646(c) and Fed.R.Civ.P. 73, the parties consented to the jurisdiction of the United State Magistrate Judge to conduct any and all proceedings and enter a final order as to Defendants Philips Electronics North America Corporation's and Philips Medizin Systeme Böblingen GMBH's Motion to Bifurcate and Stay Damages; See D.I. 129.
III. DISCUSSION
A. MOTION TO BIFURCATE
Rule 42(b) of the Federal Rules of Civil Procedure allows the court broad discretion to "order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or thirdparty claims" where separation is convenient, will avoid prejudice, expedite a resolution, or economize resources. "In the context of patent cases, `[e]xperienced judges use bifurcation and trifurcation both to simplify the issues in patent cases and to maintain manageability of the volume and complexity of the evidence presented to the jury.'" Bifurcation of patent and antitrust claims is not mandatory, but is common. "Motions to separate the issues of liability and damages are to be granted
Fed.R.Civ.P. 42(b); see also Enzo Life Sciences, Inc. v. Digene Corp., No. 02-212, 2003 WL 21402512, at *4 (D. Del. June 10, 2003) ("Under Rule 42(b), `a district court has broad discretion in separating issues and claims for trial as part of its wide discretion in trial management.'") (quoting Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 121 (Fed. Cir. 1987)); Barr Labs. v. Abbott Labs., 978 F.2d 98, 115 (3d Cir. 1992)).
Enzo Life Sciences, Inc., 2003 WL 21402512, at *4 (quoting Thomas L. Creel Robert P. Taylor, Bifurcation, Trifurcation, Opinions of Counsel, Privilege and Prejudice, 424 PLI/PAT 823, 826 (1995)).
Id. at *5 (internal citations omitted).
by the court on a case-by-case basis only when the separation will result in judicial economy and will not unduly prejudice any party." 1. Promotion of Economy and Preservation of Time and Resources
Smith v. Alyeska Pipeline Service Co., 538 F. Supp. 977, 982 (D. Del. 1982) (citing Lis v. Packer Hospital, 579 F.2d 819 (3d Cir. 1978); Idzojtic v. Pa. R.R. Co., 456 F.2d 1228 (3d Cir. 1972)).
Generally, a separate trial on damages issues is seldom required, "but in a patent infringement suit, considerations exist which suggest that efficient judicial administration would be served by separate trial on the issues of liability and damages." A trial on the question of infringement damages is "often difficult and expensive, while being easily severed from the trial of the questions of validity and infringement of the patent." Other courts have found that a finding on the question of liability may obviate the necessity for a damages inquiry or encourage a settlement. Further, separation of damages from liability allows the parties to obtain final resolution of the liability issue on appeal without reaching the often time-consuming and difficult damages question. The factors used to determine severability include, but are not limited to: "a) a need for voluminous documents to resolve damages issues; b) complex infringement issues; c) multiple patents, infringing products, claim ( sic), counterclaims, or parties; or d) the probability that the defendant would prevail on the infringement issue, thereby eliminating the need to address the issue of damages."
Swofford v B W, Inc., 34 F.R.D. 15, 19-20 (S.D. Tex. 1963).
Id. at 20.
Id.; Nettles v. General Acc. Fire Life Assur. Corp., 534 F.2d 243, 247 (5th Cir. 1956); O'Donnell v. Watson Bros. Transp. Co., 183 F. Supp. 577 (N.D. Ill. 1960); Lyophile-Crychem Corp. v. Chas. Pfizer Co., 7 F.R.D. 362 (E.D.N.Y. 1947).
Swofford, 34 F.R.D. at 20.
Real v. Bunn-O-Matic Corp., 195 F.R.D. 618, 621 (N.D. Ill. 2000).
In the instant case, Philips argues that bifurcation and a stay on patent damages will promote judicial economy and preserve the parties' time and resources because a determination of non-infringement or patent invalidity will render a damages phase unnecessary and damages discovery superfluous. At a minimum, Philips contends that a liability trial will narrow the patents, claims, and accused products at issue, which will reduce the quantity and extent of damages discovery. Further, Philips argues that even if a jury were to find infringement liability on a valid patent, a finding of antitrust liability or patent misuse could preclude any recovery regarding the infringement claims.
Masimo asserts that Philips' proposal would waste resources because Philips has not made a showing regarding the likelihood of their defense. Masimo also cites an increase in costs, in the event of further bifurcation, due to the need to educate a second jury regarding the facts and issues of the patent controversy. Masimo further claims that bifurcation and a stay on damages discovery would result in a duplication of effort due to the close relationship between damages and infringement discovery.
Philips is correct that this is a large and complex case with multiple patents, claims, and counterclaims where a finding of non-infringement or patent invalidity in the liability phase would obviate the necessity for a damages trial and render any damage exclusive discovery a waste. However, Philips has not demonstrated that the probability that its defense will prevail at trial is any higher than the probably that Masimo's claims will.
Contra Amsted Indus. Inc. v. Nat'l Castings, Inc., No. 88 C 924, 1990 WL 106548, 16 U.S.P.Q.2d 1737 (N.D. Ill. July 11, 1990) (ordering separate trials on liability and damages where court determined that plaintiff was unlikely to succeed on the merits at trial.).
Additionally, Masimo has alleged, without rebuttal, that certain aspects of its liability case will require educating the jury on specific damages issues, and that certain aspects of its damages case will require educating the jury on liability issues. Specifically, Masimo reasons that further bifurcation would force the parties to, among other duplicative activities, educate a second jury about the patented technology to allow the jurors to determine lost profits, utilize identical information and witnesses to rebut obviousness in the liability phase as well as demonstrate that Masimo's inventions were significant advances over the prior art in the damages phase, and present identical sales information regarding Masimo and Philips' products to rebut invalidity and demonstrate royalty damages or lost profit damages. Furthermore, Philips North America has alleged claims of infringement against Masimo. A stay on the presentation of damages evidence will require educating the second jury on Philips' infringement counterclaims, which are separate and unrelated to Philips' antitrust and patent misuse claims.
See Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1545 (Fed. Cir. 1995) ("[ Panduit] articulated a four-factor test that has since been accepted as a useful, but non-exclusive, way for a patentee to prove entitlement to lost profits damages. . . . The Panduit test requires that a patentee establish: (1) demand for the patent product; (2) absence of acceptable non-infringing substitutes; (3) manufacturing and marketing capability to exploit the demand; and (4) the amount of profit it would have made.") (citing Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir. 1978)).
See Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970) (listing "the utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results," as a factor in the determination of a reasonable royalty).
See Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1391-94 (Fed. Cir. 1988) (explaining that commercial success may rebut evidence of obviousness).
In light of the parties' disparate contentions regarding resource expenditure in the event of additional bifurcation or trifurcation, it is not demonstrably clear that bifurcation will conserve resources over a single trial concerning both patent liability and damages.
2. Prevention of Prejudice
Philips also argues that additional bifurcation will not prejudice either party because this court has already separated the infringement claims from the antitrust and patent misuse counterclaims. Philips suggests that because a final award cannot be determined until the conclusion of both liability phases, and because of the differences in the underlying facts regarding infringement liability and damages, a stay on damages discovery and trial will not impose an adverse economic effect upon the parties.
Philips' position overlooks the possibility of prejudice beyond the unnecessary expenditure of resources. In a previous order granting Masimo's motion to bifurcate and stay discovery of Philips North America's antitrust counterclaims, this court noted that "Philips' allegations of monopolization could bias the jury when it evaluates Masimo's patent claims." Philips' proposition that the court join trial on patent infringement damages and antitrust damages does not alleviate the court's prior concerns regarding the possibility of prejudice.
Masimo Corp. v. Philips Electronics North America Corp., 09-80, 2010 WL 925864, at *2 (D. Del. Mar. 11, 2010); see also Monsanto Co. v. E.I. du Pont De Nemours and Co., No. 4:09CV00686, 2009 WL 3012584, at *2 (E.D. Mo. Sept. 16, 2009) ("[T]he Court agrees with Plaintiffs that Defendants' allegations of monopolization could bias the jury when it evaluates Plaintiffs' patent claims.") (citing Hunter Douglas, Inc. v. Comfortex Cop., 44 F. Supp. 2d 145, 154 (N.D.N.Y. 1999)).
For most patents, the basic elements of infringement are outlined in title 35, section 271 of the United States Code which provides, in part, that "whoever without authority makes, uses, offers to sell, or sells any patented invention within the United States or imports into the United States any patented invention during the term of the patent thereof, infringes the patent." The Supreme Court has found that "[t]he grant of a patent is the grant of a statutory monopoly." However, other courts have clarified that the statutory monopoly granted by a patent is not a monopoly as the term is used in the antitrust arena. Philips North America's antitrust counterclaims focus on Masimo's purported anticompetitive licensing agreements, its allegedly improper exclusion of competition in certain markets, an alleged anticompetitive settlement agreement, and claims of exclusionary pricing and bundling practices. As with antitrust, patent misuse doctrine requires that a patentee not "use [a patent grant] to acquire a monopoly not embraced in the patent." Whereas an infringement analysis concentrates on the products of the patentee and the alleged infringer, patent misuse analysis focuses on the conduct of the patentee to invalidate the patented product or process through the patentee's use of improper or anticompetitive licensing agreements. Antitrust analysis likewise concentrates on one party's or multiple parties' anticompetitive and/or monopolistic conduct.
35 U.S.C. § 271(a).
Sears, Roebuck Co. v. Stiffel Co., 376 U.S. 225, 229 (1964).
American Hoist Derrick Co. v. Sowa Sons, Inc., 725 F.2d 1350, 1367 (Fed. Cir. 1984) ("The patent system, which antedated the Sherman Act by a century, is not an `exception' to the antitrust laws, and patent rights are not legal monopolies in the antitrust sense of that word."); Panduit Corp., 575 F.2d at 1160 n. 8 ("The loose application of the pejorative term `monopoly,' to the property right of exclusion represented by a patent, can be misleading.").
Transparent-Wrap Mach. Corp. v. Stokes Smith Co., 329 U.S. 637, 643 (1947).
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 136 (1969) ("[T]here are established limits which the patentee must not exceed in employing the leverage of his patent to control or limit the operations of the licensee. Among other restrictions upon him, he may not condition the right to use his patent on the licensee's agreement to purchase, use, or sell, or not to purchase, use, or sell, another article of commerce not within the scope of his patent monopoly.").
However, "[t]here is no unlawful leveraging of monopoly power when a patent holder merely exercises its rights inherent in the patent grant." When the same jury is presented with evidence alleging the lawful exercise of patent rights and evidence alleging the unlawful exercise of anticompetitive behavior, that jury may inadvertently blur the distinction between legitimate patent enforcement and attempts to establish or further an unlawful monopoly. Both Philips' proposed bifurcation plan, suggesting that patent damages be tried before the antitrust jury following an antitrust liability trial, and Philips' proposed trifurcation plan, empaneling a third jury to determine antitrust and patent damages simultaneously, retain the same possibility of bias previously voiced by the court. In theory, both propositions would require that a jury listen to evidence regarding both patent enforcement and anticompetitive behavior and then determine an award without any safeguard ensuring that each award is calculated based upon its own unique facts.
In re Indep. Service Orgs. Antitrust Litig., 989 F. Supp. 1131, 1135 (D. Kan. 1997).
3. Juror Comprehension
The court's interest in juror comprehension also weighs against further bifurcation in this case. The damages due in a patent infringement case are those "adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." A patent holder may demonstrate lost profits by proving (1) the demand for the patented product, (2) the absence of acceptable non-infringing substitutes, (3) its capability to exploit the demand, and (4) the amount of profit it would have made. A reasonable royalty may be calculated from "an established royalty, the infringer's profit projections for infringing sales, or a hypothetical negotiation between the patentee and infringer based on the factors in Georgia-Pacific Corp. v. U.S. Plywood Corp." These factors include (1) the royalties received by the patentee for the licensing of the patent, (2) the rates paid by the licensee for the use of other comparable patents, (3) the nature and scope of the license, (4) the licensor's established policy to not license others or condition the licensed use of the invention, (5) the commercial relationship between the licensor and licensee as competitors, (6) the effect of selling the patented invention in promoting sales of the parties' other patented or non-patented products, (7) the duration of the patent and term of the license, (8) the established profitability of the patented product, (9) the utility and advantages of the patented property over previous technology, (10) the nature of the patented invention, (11) the extent to which the infringer has made use of the invention, (12) the portion of the profit or selling price that is customary in the particular business to allow for the invention's use, (13) the portion of the realizable profit or selling price attributable to the patented invention as distinguished from non-patented elements, features added by the infringer, the manufacturing process, or business risks, (14) the opinion testimony of qualified experts, and (15) the amount that a licensor and licensee would have agreed upon at the time of the infringement in an arm's length negotiation.
35 U.S.C. § 284.
See Minn. Mining and Mfg. Co. v. Johnston Johnson Orthopaedics, Inc., 976 F.2d 1559, 1577 (Fed. Cir. 1992).
Wordtech Systems, Inc. v. Integrated Networks Solutions, Inc., 609 F.3d 1308, 1319 (Fed. Cir. 2010) (citing Georgia-Pacific, 318 F. Supp. at 1120).
Georgia-Pacific, 318 F. Supp. at 1120.
In antitrust, where an alleged monopolist withholds output in an effort to increase profits, courts have measured damages as "the price increment [paid by consumers and] caused by the anticompetitive conduct that originated or augmented the monopolist's control over the market." In other instances involving antitrust violations where a company has leveraged its position to control the flow of products in an unlawful effort to create a supply shortage or engaged in a group boycott to increase prices, courts have found that suppliers are entitled to their lost profits. In Philips' proposed schemes, the simultaneous presentation of lost profits evidence would force the jury to separate any antitrust lost profits from any infringement lost profits, and would increase the risk that evidence from one would bias the jury regarding the other. "Complex antitrust cases invariably involve complicated questions of causation and damages," and further bifurcation would unnecessarily add to the jury's burden in this case.
Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 297 (2d Cir. 1979) (finding that lost profits were recoverable even where a supplier's profits increased following the supply cutoff).
See Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 424 F.3d 363, 374 (3d Cir. 2005) (discussing the opinions of scholars regarding the measures of damages in antitrust cases):
Thus, as some scholars see it, when antitrust plaintiffs claim that anticompetitive behavior caused prices to increase, two measures of damages could theoretically be used: (1) the overcharge (i.e., the difference between the price paid for goods actually purchased and the price that would have been paid absent the illegal conduct), or (2) lost profits (i.e., the overcharge paid minus the overcharge passed on for goods actually purchased and resold, plus lost profits from the lost opportunity to buy and resell a greater volume of goods).
Id.
Forsyth v. Humana, Inc., 114 F.3d 1467, 1478 (9th Cir. 1997) (citing Potters Medical Ctr. v. City Hosp. Ass'n, 800 F.2d 568 (6th Cir. 1986)).
IV. CONCLUSION
Although Philips properly maintains that an order to bifurcate and stay discovery on patent damages would conserve resources and further judicial efficiency in the event that a jury were to find non-infringement or patent invalidity, the possibility of resource conservation is outweighed by the extra resources that would be required due to the overlap of evidence in Masimo's patent liability and patent damages case, by Philips' failure to establish a probability of prevailing in its infringement defense incontrovertibly greater than Masimo's, and by the likelihood of undue prejudice against Masimo in the event of further bifurcation. The court finds that patent infringement and infringement damages are distinct and separate from antitrust liability, antitrust damages, and patent
misuse, and that the award determination for each should be conducted with regard to only the facts pertinent to each issue.
See Eurand Inc. v. Mylan Pharm. Inc., 2009 WL 3172197, at *2 (D. Del. Oct. 1, 2009) ("Further militating toward bifurcation of these issues is the distinct lack of evidentiary overlap between issues of patent validity and infringement and issues of patent misuse and antitrust."); Critical-Vac Filtration Corp. v. Minuteman Int'l, Inc., 233 F.3d 697, 703 (2d Cir. 2000) (noting that antitrust claims based on patent misuse "are likely to involve factual issues distinct from those involved in patent litigation between the same parties."); Components, Inc. v. Western Elec. Co., 318 F. Supp. 959, 966 (D. Me. 1970) (finding a distinction between infringement issues and antitrust and patent misuse issues.); Alarm Device Mfg. Co. v. Alarm Products Int'l Inc., 60 F.R.D. 199, 202 (E.D.N.Y. 1973) ("Among the various reasons found in the cases supporting the rationale of separate trials of antitrust and patent issues are: (1) The issues, documentary proof, and witnesses in the validity-infringement claim are essentially different from those of the antitrust-misuse claims. . . .").
Any concerns that may arise regarding the imposition and subsequent enforcement of damages and injunctive relief before the trial on antitrust and patent misuse is conducted can be effectively addressed after the patent liability trial.
Because of the court's holding regarding damages bifurcation, Philips' motion to stay damages discovery is moot.
The court will consider bifurcating infringement liability and damages via a stay on the presentation of damages evidence until the jury renders a verdict regarding liability. Upon a finding of infringement liability for either party, the parties may then proceed and present infringement damages evidence before that same jury.
For the foregoing reasons, Philips' motion to bifurcate and stay damages (D.I. 121) is hereby DENIED.
Date: October 6, 2010
ury was indivisible, the defendants were joint tortfeasors.
Burke, 148 Ill. 2d at 439,
593 N.E.2d at 526.
Plaintiff states in her brief "[h]ere, plaintiffs finger injury was a single, indivisible injury. The existence of a single, individual [ sic] injury establishes that multiple defendants are jointly and severally liable." (Emphasis added.) The problem with plaintiffs second sentence is it does not end with the following phrase "for plaintiffs finger injury." In other words, because plaintiff suffered injuries which are indivisible as to her index finger, both Franklin and the medical defendants are liable for this injury. However, there was no dispute only Franklin is responsible for the fractured forearm, and the medical defendants could not be made to pay for damages resulting from the forearm injury.
Plaintiff notes our supreme court, in Burke, adopted the test of jointness in section 433A of the Restatement (Second) of Torts. The court stated "[t]he test of jointness is indivisibility of the injury." Burke, 148 Ill. 2d at 438, 593 N.E.2d at 526.
•1 Restatement (Second) of Torts § 433A (1965) provides as follows:
"(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm."
The comments on subsection (1) above, related to "distinct harms," read as follows:
"
Distinct harms. There are other results which, by their nature, are more capable of apportionment. If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.
* * *
It should be noted that there are situations in which the earlier wrongdoer may be liable for the entire damage, while the later one will not. Thus an original tortfeasor may be liable not only for the harm which he has himself inflicted, but also for the additional damages resulting from the negligent treatment of the injury by a physician. *** The physician, on the other hand, has played no part in causing the original injury, and will be liable only for the additional
harm caused by his own negligence in treatment." Restatement (Second) of Torts § 433A, Comments
b, c, at 435 (1965).
•2 Section 433A of the Restatement (Second) of Torts has been superseded by section 26 of the Restatement (Third) of Torts: Apportionment of Liability (Restatement (Third) of Torts: Apportionment of Liability § 26 (2000) (hereinafter Restatement (Third) of Torts)). While not yet formally adopted by our supreme court, we look to this section for whatever enlightenment it may provide.
Section 26 provides as follows:
"(a) When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts and separately apportions liability for each indivisible component part ***.
(b) Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:
(1) that any legally culpable conduct of a party or other relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and
(2) the amount of damages separately caused by that conduct.
Otherwise, the damages are indivisible and thus the injury is indivisible. Liability for an indivisible injury is apportioned under Topics 1 through 4." Restatement (Third) of Torts § 26 (2000).
The comments to the Restatement note most rules about dividing damages by causation were developed prior to the concept of comparative responsibility and most of these rules were developed in the context of indivisible injuries. Few courts have addressed the interaction between dividing damages by causation and apportioning liability by responsibility. Restatement (Third) of Torts § 26, Comment a, at 321 (2000). The comment further explains: "Damages can be divided by causation when any person *** to whom the factfinder assigns a percentage of responsibility *** was a legal cause of less than the entire damages. *** Divisible damages are first divided by causation into indivisible parts, and then each indivisible part is apportioned by responsibility." Restatement (Third) of Torts § 26, Comment a, at 320 (2000). "The percentages of comparative responsibility for each component part add to 100 percent." (Emphasis added.) Restatement (Third) of Torts § 26, Comment c, at 321 (2000). The comments further note the underlying policies behind the division by causation first and then the subsequent apportionment of responsibility as follows:
"No party should be liable for harm it did not cause, and an injury caused by two or more persons should be apportioned according to their respective shares of comparative responsibility." Restatement (Third) of Torts § 26, Comment a, at 321 (2000).
Thus, the two-step process, dividing injuries by causation and then apportioning responsibility to each component part, does not make a defendant liable for damages he did not cause, and it apportions liability among persons causing any component part according to that person's comparative share of responsibility. Restatement (Third) of Torts § 26, Comment d, at 323 (2000).
Comment (d) to section 26 discusses an alternative method of asking the jury to find the plaintiffs aggregate damages and then assigning a single set of percentages to all persons who caused at least part of the damage, taking into account evidence of causation and comparative responsibility. Restatement (Third) of Torts § 26, Comment d, at 323 (2000). Comment j notes, however, a problem with a one-step process, i.e., it may result in a party being held liable for more damages than the party caused. Restatement (Third) of Torts § 26, Comment j, at 326-27 (2000). "A party's comparative responsibility is distinct from the magnitude of the injury the party caused. When the factfinder is permitted to combine these two concepts to arrive at a single apportionment of liability, there is a risk that a party will be required to pay for damages it did not cause. Thus, the two-step process in [s]ubsection (a) is used unless the court determines that it is administratively infeasible." Restatement (Third) of Torts § 26, Comment j, at 326-27 (2000).
As recognized in comment h, when a defendant is jointly and severally liable, he may be liable for more than his own percentage share of the damages. Restatement (Third) of Torts § 26, Comment h, at 324 (2000). However, if a defendant did not cause a portion of the damages, the defendant should not be liable therefor, regardless of joint and several liability.
Consider the following hypothetical. A woman is in a car accident. Her legs are shattered. She also suffers a dislocated finger. After many surgeries and medical treatment that did not breach the standard of care, amputation of both legs is necessary. The total cost of her medical care is $950,000. The same orthopedic surgeon who treated her legs failed to diagnose the problem with her finger. The problem with the finger is later discovered and requires surgery to repair. The cost of the medical care for the treatment of the dislocated finger is $50,000. The woman files a two-count complaint. The first count is directed only against the at-fault driver for the injuries to her legs and finger. The second count is directed at the orthopedic surgeon for only the injury to her finger.
A jury instruction like the one given to the jury in the instant case is used over the defendant physician's objection. The jury finds the driver and the physician 97.5% and 2.5% at fault, respectively, and awards plaintiff $2 million ($1 million medical and $1 million nonmedical) for her combined injuries. The total damages are not broken down between the injuries to her legs and the dislocated finger. In addition, the verdict does not show the physician bore no fault for the injuries to plaintiffs legs. The at-fault driver is judgment proof.
Because the jury's verdict failed to divide the damages between the injuries and attributed a percentage of fault to the physician for all of plaintiffs injuries (not just the finger injury), pursuant to section 2 — 1117 of the Code of Civil Procedure ( 735 ILCS 5/2-1117 (West 2008)), the physician would be responsible for paying the entire $1 million in medical expenses even though the physician's negligence had nothing to do with the $950,000 in medical expenses incurred for the treatment of the leg injuries. Section 2 — 1117 states in part: "in actions on account of bodily injury ***, based on negligence ***, all defendants found liable are jointly and severally liable for plaintiffs past and future medical and medically related expenses." 735 ILCS 5/2 — 1117 (West 2008). Pursuant to the verdict form, the physician was found responsible for a percentage of all of the plaintiffs injuries, not just a percentage of the injury he played a part in causing. It would clearly be unfair to the physician to require him to pay medical expenses for an injury he had absolutely nothing to do with causing.
While the legislature clearly intended a minimally responsible tortfeasor to be jointly and severally liable for all medical expenses for an injury he partially caused, we find the legislature clearly did not intend for a defendant to be responsible for medical expenses for an injury the plaintiff did not even allege he caused in any part. As a result, the jury instruction and verdict form given in this case are contrary to Illinois law because they have the effect of making an individual responsible for damages he had absolutely nothing to do with causing.
•3 Thus, under section 433A of Restatement (Second) of Torts and under section 26 of the Restatement (Third) of Torts, where it is feasible for the jury to assess damages by causation, this should be done first and then apportionment of responsibility for each component part would be assigned. Even where the magnitude of each indivisible component cannot be determined with precision, this does not mean the damages are indivisible. All that is required is a reasonable basis for division of the damages. Restatement (Third) of Torts § 26, Comment f, at 323 (2000). As noted above, section 433A makes this same point. In this case, plaintiffs complaint provides the basis for dividing the damages. Plaintiff did not allege the medical defendants are in any way responsible for the injury to her forearm.
Consequently, the medical defendants' verdict form contained in their jury instruction No. 29A accurately reflected Illinois law on this issue. While we know the jury apportioned relative responsibility 75/25 (Franklin/medical defendants), we have no way of knowing how it divided the damages between the forearm and the finger. The medical defendants have no responsibility for the forearm fracture, but, under the verdict form submitted by plaintiff, the medical defendants were assigned 25% of the responsibility for all damages, including damages for the forearm injuries.
Injuries to two separate body parts, only one of which includes an alleged successive claim of medical malpractice, are two separate and distinct injuries requiring separate treatment in a jury instruction. The existence of a single, indivisible injury is necessary to establish multiple defendants are jointly and severally liable. See Board of Trustees of Community College District No. 508 v. Coopers Lybrand, 208 Ill. 2d 259, 279-80, 803 N.E.2d 460, 472 (2003). Franklin and the medical defendants are not jointly and severally liable for plaintiffs injuries to her right forearm.
As the medical defendants are not liable for any damages in relation to plaintiffs right forearm, a separate itemization as to the damages resulting from that injury is necessary in order to assess the amount of Franklin's sole liability for them. Then, a separate itemization as to the damages resulting from the injury to plaintiffs right index finger is necessary, which, in addition, assesses the relative percentage of responsibility attributable to Franklin and the medical defendants. This is exactly what the medical defendants tendered in their instruction No. 29A.
Plaintiff argues in addition to giving the jury IPI Civil (Supp. 2008) No. B45.03.A, the trial court instructed it with a modified version of Illinois Pattern Jury Instructions, Civil, No. 20.01 (2006) (hereinafter IPI Civil (2006) No. 20.01 (modified)), which included the following paragraphs as given:
"The plaintiff claims that she was injured and sustained damage, and that the defendant, Christine Franklin, was negligent in one or more of the following respects:
* * *
The plaintiff also claims that she suffered injury to her right index finger and sustained damage, and that defendant, Larry Nord, was professionally negligent in one or more of the following respects ***."
The jury was instructed that the medical defendants were alleged to be professionally negligent for the injury to plaintiffs finger, and no mention was made of the forearm injury with respect to Dr. Nord. The jury was also instructed Franklin should be held accountable for any and all injuries from the accident. However, these instructions do not cure the harm caused by the verdict form given to the jury. Without the separate itemization on the verdict form tendered by the medical defendants, there was no way provided for the jury to hold the medical defendants accountable for only the injuries they may have caused to plaintiffs index finger.
Where a pattern jury instruction accurately reflects Illinois law, the trial court is required to use it. 177 Ill. 2d R. 239(a). Here, the court was not required to use IPI Civil (Supp. 2008) No. B45.03.A because it does not accurately reflect the law under the circumstances of this case. Indeed, the comments to the jury instruction state: "This computational verdict form is to be used in cases involving a single plaintiff and more than one entity which could or might have caused plaintiffs injury or damage ***." IPI Civil (Supp. 2008) No. B45.03.A, Committee Comment, at 38-39. Here it was undisputed the medical defendants did not cause any of the damage related to the forearm injury. The comment to IPI Civil (Supp. 2008) No. B45.03.A further states: "Because of the absence of case law on various issues, the committee does not yet have sufficient guidance from the courts to draw instructions which would expressly accommodate every situation." IPI Civil (Supp. 2008) No. B45.03.A, Committee Comment, at 41. Because the jury was not given the opportunity to divide the damages between the forearm injury and index finger injury, the trial court abused its discretion in giving plaintiffs instruction No. 9 and refusing the medical defendants' instruction No. 29A. The medical defendants are entitled to a new trial.
The dissent contends the attribution of fault to the medical defendants in the amount of 25% comports with the evidence. Even if this is a fair allocation of responsibility, the dissent fails to account for the impact joint-and-several-liability principles have on Dr. Nord. Our earlier hypothetical demonstrates the inherently unfair nature of assigning a single set of percentages to all persons who caused part of the damages where the injuries are divisible, there are multiple defendants, and one or more defendants are clearly not responsible for some of the injuries.
It is absolutely clear the $307,000 award by the jury included the damages to the forearm. Since the jury attributed 25% of the fault to the medical defendants (and not less than 25%), they are jointly and severally liable to the plaintiff for all of the damages. 735 ILCS 5/2-1117 (West 2008). Thus, rather than exposure for the $76,750 the dissent contends comports with the damage to the index finger, the medical defendants share joint and several responsibility for the entire judgment, which includes damages awarded for the forearm injury.
•4 Contrary to what the dissent states, the issue is not that Dr. Nord may be responsible for more than his assessed percentage of fault, but rather how he can be responsible in any percentage or amount for an injury he did not cause. It is cold comfort that Dr. Nord now can assume the burden of trying to collect from Franklin that which he should never have been liable for in the first place. Because plaintiff alleged only Franklin was responsible for the forearm injury, it should be plaintiffs burden to collect damages for that injury from Franklin.
However, plaintiffs counsel stated during oral argument plaintiff settled with Franklin for her insurance policy limits, gave her a release, and was seeking the remainder of the judgment from Dr. Nord. The record does not reflect the amount of Franklin's policy limits. If her policy limits were only $100,000, plaintiff could seek the remainder in damages from Dr. Nord pursuant to joint and several liability. In this case, as a result of the verdict form given to the jury, neither the parties, the trial court, nor this court has any way of knowing whether this verdict will result in Dr. Nord paying for damages for an injury plaintiff did not allege he caused in any way. Since the medical defendants ought not have any liability imposed or pay any damages for the forearm injury, their tendered instruction should have been given to the jury.
Because we are granting a new trial to the medical defendants, we offer some guidance on the remaining issues raised by those defendants in the event they should arise in a new trial.
2. Injection of Insurance Into the Case
•5 The medical defendants argue the issue of insurance coverage was erroneously injected into the trial via a jury instruction when there was no mention of insurance throughout the trial. They had filed a motion in limine prior to trial to prohibit any reference to insurance. The motion was granted and no party violated it.
Plaintiff offered her instruction No. 1, Illinois Pattern Jury Instructions, Civil, No. 3.03 (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. 3.03), which states:
"Whether a party is insured or not insured has no bearing on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.
If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard."
The instruction was given over objections from both the medical defendants and Franklin.
Plaintiff argued testimony in the trial indicated all of plaintiffs medical expenses, except for less than $1,000, had been paid. The trial court initially reserved ruling on the instruction when first proffered by plaintiff. The medical defendants argued insurance was not at issue and the instruction, while published by the Illinois Supreme Court Committee on Pattern Jury Instructions in Civil Cases (Committee), had yet to be approved by the supreme court. The court later allowed the instruction without any further argument from the parties and did not give any reason for allowing the instruction.
IPI Civil (Supp. 2008) No. 3.03 was revised by the Committee in October 2007. The revision replaced two prior instructions, Illinois Pattern Jury Instructions, Civil, No. 3.03 (2006) (hereinafter IPI Civil (2006) No. 3.03) and Illinois Pattern Jury Instructions, Civil, No. 30.22 (2006) (hereinafter IPI Civil (2006) No. 30.22). The former IPI Civil (2006) No. 3.03 is the same as the first paragraph of the new IPI Civil (Supp. 2008) No. 3.03 with the addition of the words "or not insured" in the first line. The second paragraph is the same as the former IPI Civil (2006) No. 30.22, which stated the old collateral-source rule. The Notes on Use to the former IPI Civil (2006) No. 3.03 stated the instruction should "only be given at the request of the party whose liability insurance coverage has been disclosed or if the jury inquir[es] about liability insurance during deliberations."
The Notes on Use to IPI Civil (Supp. 2008) No. 3.03 state: "The Committee believes that this instruction should be given in all cases where insurance could play a role in the decision of the jury. With the wide prevalence of liability insurance, medical insurance[,] or government benefits such as Medicaid or Medicare, many jurors question the role of insurance in contested accident, medical negligence[,] or other cases."
The medical defendants argue a jury instruction is approved or rejected for use only after it has been judicially questioned and considered (see Lange v. Freund, 367 Ill. App. 3d 641, 645, 855 N.E.2d 162, 167 (2006)) and the propriety of a trial court's determination is not conclusively determined by the recommendations and comments of the Committee. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. IPI Civil (Supp. 2008) No. 3.03 has not been judicially reviewed. However, the Lange case is inapposite to the situation here as the trial court in Lange injected its own instruction into the proceedings where the committee comments recommended against giving such an instruction. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Even under such a circumstance, the reviewing court in Lange approved the giving of the court's instruction because it was appropriate in light of the closing argument made by plaintiffs counsel in that case. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Further, we note if a trial court never gives a particular jury instruction because it has never been "judicially reviewed," as defendants suggest the law to be, there will never be an opportunity to "judicially review" that particular instruction. The medical defendants' contention that an instruction promulgated by the IPI committee is not effective until approved by the supreme court is contrary to Supreme Court Rule 239(a). As noted above, a trial court is required to use an IPI instruction unless the court determines it does not accurately reflect the law. See 177 Ill. 2d R. 239(a).
Although the word "insurance" was not used during the trial here, testimony indicating the vast majority of plaintiffs sizable medical bills had been paid, while the evidence also showed she and her husband are of modest means, would lead to the inference insurance of some sort was used to pay those bills. While no mention or inference was made of the existence of insurance covering the medical defendants for their liability, the medical defendants were not unduly prejudiced as the wording of former IPI Civil (2006) No. 3.03 has been retained instructing the jury it does not matter in its deliberations whether a party was insured. No abuse of discretion in the giving of IPI Civil (Supp. 2008) No. 3.03 has been shown by the medical defendants, as the instruction accurately reflects Illinois law.
3. Conflicting Instructions in Regard to Consideration of Expert Testimony
•6 Plaintiff offered her instruction No. 3, Illinois Pattern Jury Instructions, Civil, No. 3.08 (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. 3.08), which states:
"You have heard a witness give opinions about matters requiring special knowledge or skill. You should judge [his] testimony in the same way [that] you judge *** testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case."
The trial court gave this instruction over the objection of the medical defendants. It is a new instruction, like IPI Civil (Supp. 2008) No. 3.03.
IPI Civil (Supp. 2008) No. 3.08 was given in addition to the medical defendants' instruction No. 25, Illinois Pattern Jury Instructions, Civil, No. 105.02 (2005) (hereinafter IPI Civil (2005) No. 105.02), to which there was no objection. (While the parties refer to Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) (hereinafter IPI Civil (2006) No. 105.01) in their briefs, it appears IPI Civil (2005) No. 105.02, which was withdrawn in 2006, was actually given at trial without objection by any party.) The medical defendants' instruction No. 25 states:
"A physician who holds himself out as a specialist and provides service in this specialty must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified orthopedic surgeon under circumstances similar to those shown by the evidence. The failure to do so is professional negligence. The only way in which you may decide whether a defendant possessed and applied the knowledge and used the skill and care which the law required from him is from expert testimony presented in the trial. You must not attempt to determine this question from any personal knowledge that you have."
This instruction in regard to professional negligence tells the jurors, in order to determine the standard of care, they must rely on the opinion testimony of qualified witnesses and evidence of professional standards and the jurors must not attempt to determine the question from any personal knowledge they may have.
The medical defendants argued, both before the trial court and here, the two jury instructions taken together would result in the jury ignoring the testimony of expert witnesses, as IPI Civil (Supp. 2008) No. 3.08 allows them to do, instead of using only the testimony of expert witnesses to determine the professional standard of care appropriate in these circumstances. Jurors are not permitted to determine on their own the standard of care or whether the defendant has breached it. No case has suggested it is proper for jurors to decide issues of medical negligence based on their layperson's perspective, except in circumstances of gross negligence. The medical defendants argue, at a minimum, the giving of these two instructions together is confusing to the jury. At worst, it has the potential to allow jurors, rather than medical experts, to set the standard of care.
We disagree. IPI Civil (Supp. 2008) No. 3.08 applies to the weight to be given expert testimony on any topic. IPI Civil (2005) No. 105.02 (now incorporated into IPI Civil (2006) No. 105.01) is limited to the determination of the "standard of care" for health-care defendants. The two jury instructions do not conflict. Taken together, the jury was instructed in IPI Civil (2005) No. 105.02 it must rely on expert witness testimony to determine the applicable standard of care for the medical defendants, while IPI Civil (Supp. 2008) No. 3.08 told the jury it did not need to accept all expert opinions. The Notes on Use to IPI Civil (Supp. 2008) 3.08 state it is to be used in conjunction with IPI Civil (2006) No. 105.01 (dealing generally with professional-negligence cases, replacing IPI Civil (2005) No. 105.02, which has been withdrawn), Thus, if the jury determined there were not any believable expert opinions supporting a standard-of-care determination, plaintiff would not have proved her case and the jury would so find. The instructions are neither incompatible nor contradictory. See also Sherman Health Systems, 387 Ill. App. 3d at 407-08, 900 N.E.2d at 1218 (finding IPI Civil (2006) No. 105.01 accurately states the law). But cf. Buka, 386 Ill. App. 3d at 185-86, 897 N.E.2d at 902 (finding IPI Civil (2006) No. 105.01 does not accurately state the law).
B. Evidence Qualified Radiologists Did Not Diagnose Plaintiffs Dislocated Finger
•7 Plaintiff was first seen at Memorial where X rays were taken. Dr. Haag, a clinical radiologist, read those X rays. In his report, he did not identify any dislocation of plaintiffs finger. Dr. Haag was a defendant in this case but was dismissed right before the start of the trial.
Plaintiff was again X-rayed following surgery in Bloomington. Dr. Cooley, a board-certified radiologist, reviewed the X rays and did not detect any dislocation of her finger. Both Dr. Haag's and Dr. Cooley's reports were part of plaintiffs medical records admitted into evidence by agreement. The medical defendants contend if either Dr. Haag or Dr. Cooley had identified the dislocation, it would have been treated by them in a timely manner. A significant part of the medical defendants' defense was the unusual presentation of plaintiffs dislocated finger and, thus, the difficulty in detecting the dislocated finger in the X rays. They argue radiologists are even more qualified to read X rays than orthopedic surgeons and, therefore, the fact neither Dr. Haag nor Dr. Cooley detected the finger dislocation in the X rays was highly relevant.
The trial court refused to allow reference to Dr. Haag's X-ray report in the opening statement of the medical defendants; refused to allow them to cross-examine Dr. Rotman using Dr. Haag's and Dr. Cooley's X-ray reports; and excluded some of Dr. Cooley's testimony. The medical defendants argue, taken together, these rulings deprived them of a fair trial. They contend the X-ray reports are part of plaintiffs medical history and cannot be properly excluded.
They argue, further, Dr. Cooley testified at trial that the dislocation of plaintiffs finger was visible on the same X rays he looked at in the course of plaintiffs treatment but failed to visualize initially. Plaintiff also presented testimony from Dr. Rotman the dislocation was visible on the X rays taken in early 2004 at Dr. Nord's office. The medical defendants argue the court kept from the jury facts contained in the medical records that showed Drs. Haag and Cooley did not identify the dislocation on those same X rays.
Thus, the medical defendants argue the trial court's rulings eliminating the mention of Dr. Haag at trial and severely limiting Dr. Cooley's testimony denied them the opportunity to fairly present their theory of the case and were prejudicial error.
"`[E]videntiary rulings are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.`" People v. Johnson, 385 Ill. App. 3d 585, 596, 898 N.E.2d 658, 669 (2008), quoting People v. Purcell, 364 Ill. App. 3d 283, 293, 846 N.E.2d 203, 211 (2006). Abuse of discretion is found only where the trial court's rulings are arbitrary, fanciful or unreasonable, or where no reasonable person would take the view adopted by the court. Purcell, 364 Ill. App. 3d at 293, 846 N.E.2d at 211.
We note, first, the medical defendants are incorrect in stating no evidence was before the jury in regard to Dr. Cooley missing the diagnosis of the dislocated finger. Dr. Cooley admitted in his testimony the X-ray report he authored in regard to the December 13, 2003, X ray made no mention of the fracture dislocation of plaintiffs right index finger because he did not visualize the fracture dislocation at that time. He also stated the training a radiologist receives in interpreting X rays is greater than that of an orthopedic surgeon, which supports the medical defendants' theory of the case. In fact, the trial court cited this when the medical defendants wanted to use Dr. Haag's findings, concluding it would be duplicative and they could argue their defense theory based on Dr. Cooley's testimony.
The problem with the defense theory, however, which makes the missing reports of finger dislocation by the radiologists of little relevancy, is the fact the radiologists were not asked to look for a dislocation but to confirm the right forearm fracture. Dr. Cooley testified it was much easier for radiologists to spot things on film when they were looking for them. Additionally, neither radiologist saw plaintiff in person, and Dr. Nord, rather than rely on a radiologist's report, read the X rays himself. In addition, what defendants really sought to do was argue, "If the radiologists didn't see it, then the orthopedist was not negligent for missing it." In essence, defendants wanted to argue defendants met the standard of care because two radiologists did not report the dislocation. However, no professional opinion testimony was offered to support this conclusion. As noted above, the jury was required to rely on expert testimony to determine the standard of care.
The medical defendants were allowed to argue the presentation of plaintiffs dislocation was unusual and, thus, difficult to see on the X rays, and, in fact, it was missed by a radiologist before Dr. Nord saw her. However, Dr. Nord treated plaintiff extensively over a period of several months. Evidence showed at least 13 office visits between plaintiff and Dr. Nord. The radiologists may have missed the dislocation on the X rays, but Dr. Nord was presented with a patient who had a badly swollen hand and testified she reported pain in her hand and fingers with every office visit. Dr. Nord was also able to palpate plaintiffs hand on each visit. Although Dr. Nord denies the reports of pain and there is no record of them in his office notes, Dr. Nord was presented with many more opportunities and reasons to review the X-ray film, looking for injuries besides the forearm fracture, than were the radiologists. Thus, comparing the radiologists' reports that missed the finger dislocation with the opportunities Dr. Nord had to diagnose the dislocation is similar to a comparison of apples and oranges, making the radiology reports, for the most part, irrelevant. (This would be similar to Franklin offering testimony that a professional race-car driver also failed to yield at the same intersection where this collision occurred. That someone with arguably greater skill was also negligent is not a legitimate defense.) Further, Dr. Nord did not rely on the radiologist's report prior to performing the initial surgery. He read the X rays taken in Springfield himself, as he does with all of his orthopedic patients.
Dr. Cooley's testimony was presented at trial via an evidence deposition. The excluded portion of his testimony pertained to the standard of care for a well-qualified radiologist and was not relevant to this case.
The medical defendants were not kept from arguing their defense to the jury, and only irrelevant evidence was kept from the jury by the trial court. We find no abuse of discretion.
C. Errors in Opening Statement and Closing Arguments 1. Mention of Plaintiff's Miscarriage in Opening Statement
•8 Although plaintiff incurred a miscarriage after the automobile accident, no recovery was sought for it. Nonetheless, during opening statement, plaintiffs counsel told the jury plaintiff had a miscarriage after the accident. The medical defendants contend this was an attempt to create sympathy and prejudice in the minds of the jurors.
Objection was made by Franklin's counsel but not counsel for the medical defendants. The objection was sustained and the medical defendants made a motion in limine to bar further mention of the miscarriage. The motion was granted and the parties abided by the ruling.
Because no objection was made by the medical defendants nor did they join in or adopt Franklin's objection, the issue could be considered forfeited. See Brown v. Timpte Inc., 137 Ill. App. 3d 1053, 1062-63, 485 N.E.2d 488, 494 (1985). However, as this case is being reversed and remanded, we will consider this issue.
An opening statement is intended to inform jurors of the nature of the action and to provide an outline of what counsel expects admissible evidence at trial to show so the jurors can better understand testimony they will hear during trial, but no statement may be made in opening which counsel does not intend to prove. Gillson v. Gulf, Mobile Ohio R.R. Co., 42 Ill. 2d 193, 196-97, 246 N.E.2d 269, 272 (1969). Statements made by counsel in opening statement are improper if they are not in good faith and are prejudicial. Surestaff, Inc. v. Open Kitchens, Inc., 384 Ill. App. 3d 172, 174, 892 N.E.2d 1137, 1140 (2008).
Plaintiff argues the comments of counsel were factually accurate as the Memorial records reflect plaintiff was pregnant. Further, Dr. Nord was expected to introduce the testimony of Dr. Pickett by means of video evidence deposition. His testimony at the deposition included this question and answer:
"Q. Okay. What was the next thing you did?
A. Well, seeing the patient's complaint, apparently[ —]it's patient had a history that she is five weeks pregnant and I ordered a pregnancy test and a CBC and probably simultaneously with that obtained consultation from orthopedic service."
After the medical defendants' motion in limine, this testimony was stricken from the deposition. But plaintiff argues she had no way of knowing this at the time her counsel made his opening statement.
As plaintiff never sought recovery of damages as a result of her miscarriage, it is wholly irrelevant and prejudiced the medical defendants. Plaintiffs counsel had no reason to tell the jury about it in opening statement. It was simply a subtle attempt to appeal to the emotions of the jury, which constitutes error. See First National Bank of La Grange v. Glen Oaks Hospital Medical Center, 357 Ill. App. 3d 828, 833, 829 N.E.2d 378, 385 (2005).
Even without the existence of a motion in limine, comments concerning plaintiffs miscarriage have no place in statements by counsel.
2. Plaintiffs Counsel Stated During Closing Argument Plaintiff Did Not Have the Burden of Separating Damages for Arm and Finger
During closing argument, plaintiffs counsel quoted the jury instruction defining "proximate cause" and then went into the complained-of argument:
"When I use the expression, quote, `proximate cause,' unquote, I mean any cause which in the natural and ordinary course of events produced the [p]laintiff s injury. It need not be the only cause, nor the last, nor the nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it causes the injury.
In other words, [plaintiff] does not have the obligation to try to parse her injury. She does not have the obligation, the law does not place a burden on her, to demonstrate which of these injuries is due exclusively to a motor vehicle accident, how much of it is due to Dr. Nord's negligence. The [p]laintiff does not have that burden, because proximate cause is defined, and both of these [d]efendants contributed and proximately caused the injuries that we now have."
The medical defendants objected to this argument as a misstatement of the law, implying plaintiff did not have the burden to show proximate cause but defendants had that burden. The objection was sustained.
Plaintiffs counsel then continued his argument:
"Yeah, I didn't say we don't have the burden to show what proximate cause is, what I said was [p]laintiff doesn't have the burden to separate the injuries out and to separate the medical bills out. That's what I am saying."
The medical defendants objected again, arguing plaintiff did have the burden to separate her medical bills for each injury. The objection was sustained.
The medical defendants argue the law is clear, even if plaintiff demonstrated they had breached the standard of care with respect to a late diagnosis of the dislocated finger, they could not be held responsible for injuries resulting from plaintiffs arm fracture.
The purpose of closing argument is to draw reasonable inferences from the evidence and assist the jury in arriving at a verdict based on the law and the evidence. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 948, 738 N.E.2d 199, 213 (2000). The medical defendants argue an appeals court has the discretion to grant a new trial based on improper closing argument. See Regan v. Vizza, 65 Ill. App. 3d 50, 54, 382 N.E.2d 409, 412 (1978). However, where the trial court sustains an objection to improper argument by counsel, any error is considered cured and, if the trial was fair as a whole and the evidence sufficient to support the verdict, the judgment will not be reversed on appeal. See Lecroy v. Miller, 272 Ill. App. 3d 925, 933-34, 651 N.E.2d 617, 622 (1995).
•9 First, we note plaintiff did not "repeatedly" argue to the jury she did not have the burden of separating her damages as argued by the medical defendants. However, as noted in our discussion concerning the erroneous verdict form used in this trial, plaintiff did have the burden to separate her damages between her forearm and her index finger. Thus, her counsel's argument was objectionable and the trial court was correct to sustain the medical defendants' objection to it (even though it erroneously refused the medical defendants' proffered jury-instruction verdict form).
3. Franklin's Counsel Questioned Dr. Nord Operating on Plaintiffs Hand
•10 Counsel for Franklin argued in closing argument: "Another problem I have is you know, this thing goes on for six months, and the physical therapist does diagnose it by palpation the first time she sees the patient. What does Dr. Nord do? He operates on the finger. He is not a hand surgeon. Why does he operate on that hand and then later send her to the expert, Dr. Lee?"
Counsel for the medical defendants moved to strike this argument as not relevant. Franklin's counsel contended this was not argument but only a statement. The trial court stated it was an argument but overruled the objection.
Franklin's counsel then stated:
"As I said, there's a lot of issues and a lot of speculation that we don't need to get into, I'm just pointing out the facts."
The medical defendants contend Franklin's counsel knew this argument was objectionable. Plaintiffs counsel attempted to question Dr. Nord during the trial about why he performed the first hand surgery instead of sending plaintiff to a specialist immediately. The trial court sustained the medical defendants' objection. Plaintiffs counsel argued at that time the question went to the credibility of Dr. Nord because medical-malpractice defendants often tried to correct the problem without anyone else ever knowing about it. The medical defendants argued no expert testified anything was wrong with Dr. Nord's surgery on plaintiffs hand nor were any allegations made to that effect. In fact, Dr. Rotman, plaintiffs expert, stated he had no criticisms of Dr. Nord's surgeries. He did not state the opinion Dr. Nord should have referred plaintiff to Dr. Lee earlier.
Although Franklin's cross-claim did contain an allegation Dr. Nord not only failed to properly diagnose plaintiffs hand injury, but also failed to properly treat the injury, no evidence was presented at trial as to the appropriate standard of care for hand surgery and whether Dr. Nord, an orthopedic surgeon, breached that standard of care. Counsel's follow-up statement to the jury, that there was a lot to speculate about but he was just stating the facts, did not negate the suggestion Dr. Nord may not have properly treated plaintiffs hand injury once he did diagnose it. As no evidence supported counsel's "speculation," it was error to include it in his closing argument and the medical defendants' objection to it should have been sustained.
III. CONCLUSION
For the above reasons, we reverse the trial court's judgment and remand the cause for a new trial.
Reversed and remanded.
STEIGMANN, J., concurs.
Plaintiffs No. 9:
VERDICT FORM A
We, the jury, find for Dawn Auten and against the following defendants:
Christine Franklin Yes _____ No ______
Larry Nord, M.D. and Central IL Orthopaedic Surgery Yes _____ No _____
We further find the following:
First: That the total amount of damages suffered by Dawn Auten as a proximate result of the occurrence in question is $ _______, itemized as follows:
The reasonable expense of necessary medical care, treatment, and services received $_______
The disfigurement resulting from the injury $_______
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries $_______
The disability experienced and reasonably certain to be experienced in the future $_______
PLAINTIFF'S TOTAL DAMAGES: $_______
Second: Assuming that 100% represents the total combined fault of all persons or entities whose fault proximately caused Dawn Auten f/k/a/ Dawn Barnett's injury, including any defendant whom you have found liable, we find the percentage of fault attributable to each as follows:
(a) Christine Franklin _____%
(b) Larry Nord, M.D./Central IL Orthopaedic Surgery _____%
TOTAL 100%
If you find either defendant not liable to the plaintiff, then you should enter zero (0) as to that defendant.
Third: We award Dawn Auten recoverable damages in the amount of $_______
Medical defendants' No. 29A:
VERDICT FORM A
Does the jury find for Dawn Auten and against Christine Franklin for injuries which the plaintiff suffered to her right forearm?
Christine Franklin Yes _____ No _____
We find the total amount of damages suffered by Dawn Auten as a proximate result of the injuries to her right forearm is $_______, itemized as follows:
The disfigurement resulting from the injury: $_______
The disability experienced and reasonably certain to be experienced in the future: $_______
The pain and suffering experienced as a result of the injuries: $_______
The reasonable expense of necessary medical care, treatment and services received: $_______
PLAINTIFF'S TOTAL DAMAGES FOR INJURIES TO HER RIGHT FOREARM:
Does the jury find for Dawn Auten and against the following defendant(s) for injuries which the plaintiff suffered to her right index finger?
Christine Franklin Yes _____ No _____
Larry Nord, M.D./Central IL Orthopedic Surgery, S.C. Yes _____ No _____
We find the total amount of damages by Dawn Auten as a proximate result of the injuries to her right index finger is $ _______, itemized as follows:
The disfigurement resulting from the injury: $ _______
The disability experienced and reasonably certain to be experienced in the future: $_______
The pain and suffering experienced as a result of the injuries: $_______
The reasonable expense of necessary medical care, treatment and services received: $_______
PLAINTIFF'S TOTAL DAMAGES FOR INJURIES TO HER RIGHT INDEX FINGER: $_______
Assuming that 100% represents the total combined negligence of all persons whose negligence proximately caused Dawn Auten's right index finger injury, we find that the percentage of negligence attributable to each as follows:
Christine Franklin _____%
Larry Nord, M.D./Central IL Orthopedic Surgery, S.C. _____%
TOTAL 100%
( Instructions to Jury: If you find any defendant not liable to the plaintiff for her finger injury, then you should enter a zero percent (0%) as to that person or persons.)
PRESIDING JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. I disagree that reversible error occurred in closing arguments. Further, I believe Drs. Cooley's and Haag's testimony should have been allowed in full but do not believe the court's ruling constituted reversible error. More important, the trial court did not abuse its discretion by giving IPI Civil (Supp. 2008) No. B45.03.A, the jury was not misled by this instruction, and the medical defendants were not prejudiced by this instruction. I would affirm.
The given instruction accurately stated the law. Buka, 386 Ill. App. 3d at 179, 897 N.E.2d at 896 (a trial court must use the IPI instruction unless it does not accurately state the law). The instructions clearly directed the jury to determine the total amount of damages suffered by plaintiff and to apportion each defendant's degree of fault:
"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 her ***."
"[Y]ou must apportion damages by determining the relative degree of fault, if any, of each person *** named or described on the verdict form."
The instructions clearly established that the rights of defendants, Franklin and Nord, are separate and distinct from one another:
"The rights of the defendants, Christine Franklin[] and Larry Nord, M.D., are separate and distinct from one another. Each defendant is entitled to a fair consideration of his or her own defense and you will decide each defendant's case separately as if it were a separate lawsuit. Each defendant's case must be governed by the instructions applicable to that case."
Though proposed instruction No. 29A introduced by defendant Nord more fully states the law, that is not the test here.
Even if we accept the majority's proposition that the IPI instruction was faulty and did not accurately state the law, that instruction is still appropriate as it did not mislead the jury or result in prejudice to the medical defendants, a prerequisite for reversal. See People v. Rodriguez, 387 Ill. App. 3d 812, 821, 901 N.E.2d 927, 936 (2008) (the reviewing court will not reverse, even if the instruction was faulty, unless the instruction "clearly misled the jury and resulted in prejudice to the appellant"). Indeed, verdict form A clearly provided the jury opportunity to find each defendant responsible for none, part, or all of plaintiffs injuries:
"We, the jury, find for Dawn Auten and against the following defendants: Christine Franklin[:] Yes ___ No ___[;] Larry Nord, M.D. and Central IL Orthopaedic Surgery[:] Yes ___ No ___[.] *** Assuming that 100% represents the total combined fault of all
persons or entities whose fault proximately caused Dawn Auten f/k/a Dawn Barnett's injury, including any defendant whom you have found liable, we find the percentage of fault attributable to each as follows: (a) Christine Franklin ___ % (b) Larry Nord, M.D./ Central IL Orthopaedic Surgery ___ %[.]"
Verdict form B allowed a determination on the counterclaim filed by defendant Nord against defendant Franklin:
"We, the jury, find for defendant, Larry Nord, M.D.[,] and Central Illinois Orthopedic Surgery, S.C.[,] and against the plaintiff and [c]ounter[-p]laintiff, Christine Franklin."
Though no separate verdict form was provided with regard to the counterclaim filed by Franklin against Nord, the jury instructions nevertheless provided more than adequate direction to make the jury aware of Franklin's counterclaim, and the simplified verdict form that was given allowed sufficient opportunity for the jury to make a determination as to all claims and counterclaims. Additionally, the IPI comments reaffirm that IPI Civil (2006) B45.03.A should be given in this case:
"This verdict form is identical to IPI. B45.03.A with the exception of the addition of paragraph `Second' providing for findings for or against third-party defendants.
For cases involving contribution counterclaims among defendants, tried concurrently with the plaintiff's claim, use B45.03A. For contribution claims which involve third-party complaints use this instruction." (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 600.14, Notes on Use, at 627-28 (2006).
I recognize plaintiffs counsel argued, during closing argument, that plaintiff did not have the burden of demonstrating which of her injuries were due exclusively to the motor-vehicle accident and which were due to the medical defendants. However, defense counsel objected to this line of argument, and the objection was sustained. Nevertheless, plaintiff ultimately argued correctly, and the jury was properly instructed to make a determination about the doctor's failure to diagnose the finger, not the forearm:
"The plaintiff claims that she was injured and sustained damage, and that the defendant, Christine Franklin, was negligent in one or more of the following respects:
(a) *** [Flailing to yield ***;
(b) Failing to keep a proper lookout for other traffic;
(c) Failing to keep the vehicle she was operating under proper control.
The plaintiff further claims that one or more of the foregoing was a proximate cause of [her] injuries.
The defendant, Christine Franklin, denies that she was negligent.
* * *
The plaintiff also claims that she suffered injury
to her right index finger and sustained damage, and that defendant, Larry Nord, was professionally negligent in one or more of the following respects:
(a) Failing to perform an adequate and thorough examination of plaintiff;
(b) Failing to order the appropriate [X]-rays;
(c) Failing to diagnose the dislocation of plaintiffs index finger; and
(d) Failing to properly treat plaintiffs dislocated index finger. The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries.
Defendant, Larry Nord, denies that he did any of the things claimed by the plaintiff, denies that he was negligent, and denies that any claimed action or omission on his part was a proximate cause of plaintiffs injuries.
* * *
Defendant, Christine Franklin, counterclaims that she is entitled to contribution from co[d]efendant, Larry Nord, for one or more of the following acts:
(a) Failing to perform an adequate and thorough examination of plaintiff;
(b) Failing to order the appropriate [X]-rays;
(c) Failing to diagnose the dislocation of plaintiffs index finger; and
(d) Failing to properly treat plaintiffs dislocated index finger. Defendant, Larry Nord, denies that he did any of the things claimed by Christine Franklin, denies that he was negligent, denies that he contributed to plaintiffs injuries, and denies that any claimed act or omission on his part was a proximate cause of the plaintiffs claimed injuries.
Defendant, Larry Nord, counterclaims that he is entitled to contribution from defendant, Christine Franklin, for one or more of the following negligent acts and/or omissions:
(a) Failing to operate the automobile in a safe and cautious manner;
(b) Failing to keep a safe and careful lookout for other traffic;
(c) Failing to stop the automobile or to apply the brakes on the automobile in time to avoid colliding with another automobile;
(d) *** [F]ailing to yield ***.
Christine Franklin denies that she was negligent."
In these instructions, the trial court specifically instructed the jury that plaintiff claimed she suffered injury to her right index finger due to the medical defendants' negligence, and the reviewing court must assume the jury followed the jury instructions. See, e.g., People v. Platter, 89 Ill. App. 3d 803, 820, 412 N.E.2d 181, 194 (1980) ("The jury was properly instructed on the crime of involuntary manslaughter, and we will assume that the jury followed the instructions that were given").
The jury was also correctly instructed that defendant Franklin was responsible for damages resulting from Nord's actions.
"If a defendant negligently causes injury to the plaintiff, then the defendant is liable not only for the plaintiffs damages resulting from that injury, but is also liable for any damages sustained by the plaintiff arising from the efforts of health[-]care providers to treat the injury caused by the defendant[,] even if that health[-]care provider was negligent."
See Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006).
Further, when apportioning the degree of fault, the jury clearly considered that the medical defendants were only responsible for the injury to plaintiffs right index finger caused by their negligence. In fact, the evidence supports the jury's verdict that the medical defendants were responsible for 25% of plaintiffs damages. According to plaintiffs exhibit F, the medical bills related to treatment for (1) the arm injury alone totaled $24,252.42, (2) the finger injury alone totaled $47,035.14, and (3) the arm and finger injury together totaled $36,500, for a grand total of $107,788.54 in medical bills. (The jury awarded $107,000 for the reasonable expense of necessary medical care.) Moreover, the evidence indicated that the residual damage to the right index finger was greater than the injury to her arm. Additionally, plaintiff had significant pain and dysfunction associated with the injury to her right index finger, while she had little discomfort or dysfunction with her arm.
Without even taking into account the medical bills for the arm and finger injuries, the medical expenses plaintiff incurred solely for the injury to the right index finger ($47,035.12) are approximately twice as high as the medical expenses for the arm injury alone ($24,252.42). (Combined medical expenses for the arm and finger injuries totaled $36,500.98.) Yet, the jury assessed against the medical defendants 25% of plaintiffs total damages (25% of $307,000), which totals $76,750. That amount comports with the evidence of injury to the index finger for which the medical defendants were responsible.
The jury's verdict clearly does not suggest the jury was misled by the evidence, closing argument, or IPI Civil (Supp. 2008) No. B45.03.A. Indeed, Illinois Supreme Court Rule 239(a) states the IPI Civil are sufficient and not misleading: "Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law *** the IPI instruction shall be used ***." 177 Ill. 2d R. 239(a). As "[a] reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless [the instructions] clearly misled the jury and resulted in prejudice to the appellant," the trial court's ruling should be affirmed. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964, 973 (2002).
The majority raises the unspoken spectre in this case — the Joint Tortfeasor Contribution Act ( 740 ILCS 100/0.01 through 100/5 (West 2008)) — and the fact defendant Nord may be responsible for more than his assessed percentage of fault due to defendant Franklin's unknown settlement for policy limits referenced on oral argument. However, that matter is not before this court and does not justify reversing an appropriate jury award. The jury made the appropriate calculations and allocations on this record. This was not "rocket science" — the jury considered the evidence and correctly apportioned liability between the parties. We should not now second-guess the jury's abilities with hypotheticals and evidence not in the record.
The majority argues defendant Nord ought not have liability for the forearm. We do not know that he does. That is a matter between the joint tortfeasors and is the reason for the Contribution Act. 740 ILCS 100/2(a), (b) (West 2008). Defendant Nord has a right to an offset for the amount of defendant Franklin's settlement. Franklin must obtain from the trial court approval of the settlement as being in good faith before she can be released and dismissed. That is defendant Nord's protection here, as set forth by the legislature in the statute. This is not a wrong that needs to be addressed by this court based on the record and these instructions.
It is also of no matter that the settlement was reached after the jury verdict. See Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 286, 641 N.E.2d 402, 411 (1994) (holding that, because "jury verdicts may be modified, reduced, or vacated on post[]trial motion or on appeal," the court "do[es] not believe *** the parties should be obligated to accept the verdict amount as the final determination of the defendants' common liability to the plaintiff to be reflected in a post-judgment settlement agreement"). Nor does plaintiffs settlement with defendant Franklin hinder plaintiffs right to enforce the judgment against defendant Nord. See Henry v. St. John's Hospital, 138 Ill. 2d 533, 541, 563 N.E.2d 410, 414 (1990) (holding "that an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor").
Concededly, the proposed instruction is a good one, and it would not have been error for the trial court to have given that instruction. However, the instruction given was also proper, and the court did not abuse its discretion by giving the IPI instruction. For these reasons, I would affirm.