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Cahill v. Boury





Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.


This case involves a medical malpractice claim filed by plaintiff, Helen C. Cahill, in the circuit court of Du Page County. Named as defendants were Dr. Harb Boury and Dr. J. George Handley. At the close of the evidence, the jury returned a verdict in favor of defendants, and plaintiff filed this appeal arguing that defense counsel's numerous acts of misconduct denied her a fair trial.

Plaintiff's complaint, filed on April 28, 1982, alleged that defendants negligently performed an operation known as an anterior cervical discectomy and fusion on August 20, 1981. Plaintiff alleged in part that defendants negligently inserted and removed a retractor causing plaintiff's vocal nerves to be stretched or cut and negligently failed to inform plaintiff of the risk of losing, in whole or in part, her normal ability to speak. On July 25, 1984, plaintiff amended her complaint to add the allegation that defendants failed to pursue conservative treatment before operating and performed and operation that was not necessary or compatible with her symptoms.

The case proceeded to trial in August of 1984 and lasted eight days. At the conclusion of the evidence, the jury returned a verdict in favor of defendants. Plaintiff filed a post-trial motion requesting a new trial on September 19, 1984. The motion was denied on December 5, 1984, and plaintiff filed this appeal on January 4, 1985.

• 1, 2 Plaintiff asserts that defense counsel made a total of 20 improper and prejudicial remarks and statements during closing arguments. After careful consideration of the record in this case, we find that some of defense counsel's arguments may have been improper. We also find, however, that plaintiff failed to object to seven of these arguments, and her failure to object must be considered a waiver of her objections. (Chloupek v. Jordan (1977), 49 Ill. App.3d 809, 817.) Further, the trial court sustained plaintiff's objections and instructed the jury to disregard eight of the arguments. The trial court's act of sustaining the objections and instructing the jury is deemed to have corrected any prejudice to plaintiff. People v. Baptist (1979), 76 Ill.2d 19, 30.

Plaintiff argues that where such prejudicial arguments of counsel affect the case to the extent that a litigant is denied a fair trial, such errors may be considered and a new trial may be ordered even though the party did not object (Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App.3d 719, 729-30) or the court sustained the objection (Mileur v. Briggerman (1982), 110 Ill. App.3d 721, 727). While we do not disagree with plaintiff's statement of the law, our review of the record shows that defense counsel's alleged prejudicial arguments did not rise to the level of denying plaintiff a fair trial. Therefore, we will specifically address only those five issues not waived or cured below.

The first allegedly prejudicial remark occurred during plaintiff's closing argument. After attempting to explain away an inconsistency between plaintiff's trial testimony and her pretrial deposition, plaintiff's counsel asked, "Is there anybody in this courtroom that does not think that lady [plaintiff] is telling the truth under oath? Is there anybody?" Thereupon, defense counsel stood up and responded, "I don't." Plaintiff's request that the remark be stricken was overruled on the basis that the remark was invited. Plaintiff argues that the remark was meant to embarrass counsel and was a direct attack on plaintiff's credibility unsupported by any evidence.

• 3 We agree that the remark was improper, but find that error harmless. Plaintiff's counsel asked a rhetorical question which defense counsel should not have responded to until his own closing argument. Defense counsel's remark, however, did not destroy or seriously jeopardize plaintiff's ability "to obtain respectful consideration at the hands of the jury" as she argues. Further, while defendants' attack on plaintiff's credibility may have been premature, it was based on the evidence. Plaintiff's trial testimony and pretrial deposition were inconsistent on the critical issue of whether plaintiff had felt pain in her arms prior to the surgery.

• 4 The second allegedly prejudicial statement occurred during defendants' closing argument when defense counsel stated:

"[A]nd when that original Complaint, which has never been amended to this date, was filed there was no single charge or complaint saying that the surgery was unnecessary or that it should not have been performed on the charges as outlined in the Complaint."

Plaintiff immediately corrected defense counsel stating that an amendment had been filed approximately three weeks before trial. After defense counsel responded that the amendment was not in the court file, the trial court stated that "[t]he record should reflect that there was an amended complaint adding that." While plaintiff argues that defense counsel did know of the amendment, plaintiff fails to present any evidence that counsel's misstatement was not innocently made as he claims. Further, any prejudice to plaintiff was corrected by the court's statement that the complaint had been amended.

Defendants' closing arguments then continued:

"Why is it then that just three weeks ago, for the first time in this case, a complaint is made saying the surgery was unnecessary, you should have had more conservative therapy? And I ...

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