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Northern Trust Co. v. County of Cook

OPINION FILED JULY 23, 1985.

THE NORTHERN TRUST COMPANY ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF COOK ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 26, 1985.

This is an appeal by the County of Cook and six physicians employed by it from a judgment on a jury verdict of $8,126,711 in a medical malpractice action and the award of prejudgment interest on the non-pecuniary elements of the verdict.

Shortly after his birth at Cook County Hospital on December 10, 1976, plaintiff Naymat Ahmed developed meningitis and ventriculitis, which resulted in the destruction of a substantial portion of his brain. At the time of trial, plaintiff was 7 1/2 years old. He was profoundly and severely retarded, unable to walk or speak and unable to be toilet trained. He suffers seizures, has undergone surgery to allow the full extension of his limbs and is developing a curvature of the spine.

After his discharge from Cook County Hospital on January 21, 1977, plaintiff lived at home and received daily special education training, including physical, occupational, speech and music therapy, at Little Friends Sheltered Workshop in Naperville, until July 1979, when plaintiff and his family moved to India. In India, plaintiff underwent a neurological examination by a "homeopathic" doctor. As a result of this consultation, plaintiff's parents discontinued anticonvulsant medication prescribed by U.S. physicians and began homeopathic treatment. During plaintiff's stay in India, from July 1979 to June 1981, he received physiotherapy at Nilofer Children's Hospital, was fitted with orthopedic shoes and braces, and was seen by a pediatrician.

Plaintiff returned to the U.S. in June 1981, and received special education at the Indian Prairie School in Naperville until January 1982, when the family moved to Houston, Texas. Plaintiff has attended public schools in the Alief School District in suburban Houston since January 1982 and receives special education services on weekdays, such services consisting of physical, occupational, speech and music therapy, adaptive physical education and special transportation. He receives 30 hours per week of such services from the Alief School District.

Prior to trial in 1984, defendants admitted liability for plaintiff's injuries, and the trial proceeded solely on the issue of damages. In closing arguments, plaintiff's counsel asked the jury to award plaintiff nearly $13,000,000. The jury awarded $2,500,000 for plaintiff's disability and disfigurement, $1,500,000 for past and future pain and suffering, $1,200,000 as the present cash value of future expenses of medical care and services, $2,579,725 as the present cash value of future expenses for necessary care in plaintiff's home, and $346,986 as the present cash value of plaintiff's lost future earnings after he reaches 22 years of age. These awards total $8,126,711.

After the verdict was returned, plaintiff requested the assessment of prejudgment interest. The trial court ordered defendants to pay prejudgment interest on the $4,000,000 awarded for disability, disfigurement, pain and suffering from December 10, 1976, the date of plaintiff's injury, to May 29, 1984, the date of judgment, at the prevailing rate of interest on judgments.

Defendants appeal the judgment, disputing the propriety of certain evidentiary rulings and jury instructions, the amount of the verdict, and the award of prejudgment interest.

• 1 Defendants first contend that the trial court erred in excluding from evidence a study entitled "Life Tables for the Institutionalized Mentally Retarded," a 64-page report of a study of the lifespans of 14,000 mentally retarded persons admitted to a California State hospital for a 47-year period, from 1927 to 1974. This study contained findings which lead to the conclusion that an institutionalized 7 1/2-year-old profoundly retarded, non-ambulatory and non-toilet-trained child will live, on the average, to an age of only 25 years. Two of the authors of the study, Dr. Eyman and Dr. Grossman, testified as to the content of the study, and the study's mortality tables were admitted into evidence.

The trial court excluded the study on hearsay grounds. The fundamental purpose of the hearsay rule is to test the real value of testimony by exposing the source of the assertions to cross-examination by the party against whom it is offered. (People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738.) In the instant case, the study offered into evidence by defendants was co-authored by several persons, not all of whom were available at trial for cross-examination. Drs. Eyman and Grossman, two of the authors, testified as to the content of the study and the conclusions reached therein. However, their availability at trial did not expose the source of the entire document to cross-examination, where the remaining authors did not testify, and did not cure the document's hearsay status. Additionally, it is apparent from the record that the testimony of Drs. Eyman and Grossman, combined with the admission into evidence of the study's mortality tables, provided the jury with all the relevant information which could have been gleaned from an examination of the text of the study itself. We therefore find that the trial court did not err in refusing to admit the study into evidence.

• 2 Defendants next contend that the trial court erred in giving the jury instruction tendered by plaintiff as to life expectancy. Defendants argue that the instruction given the jury by the court ignored defendants' evidence, based upon expert testimony regarding the "Life Tables for the Institutionalized Mentally Retarded," that plaintiff's life expectancy was approximately 25 years, as opposed to 70.8 years for the average U.S. male.

The instruction tendered by plaintiff and given to the jury by the court reads, in pertinent parts, as follows:

"According to a table of mortality, the life expectancy of a person aged 7-1/2 years is 63.3 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 7-1/2. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of health, habits, and ...


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