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03/02/89 Patrick Hockett Et Al., v. John K. Dawdy Et Al.

March 2, 1989

PATRICK HOCKETT ET AL., PLAINTIFFS-APPELLANTS

v.

JOHN K. DAWDY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

536 N.E.2d 84, 180 Ill. App. 3d 491, 129 Ill. Dec. 400 1989.IL.262

Appeal from the Circuit Court of Bond County; the Hon. John L. DeLaurenti, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON AND LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This is an appeal by plaintiffs from a judgment in favor of defendants entered April 27, 1987, upon a verdict in the circuit court of Bond County. The issues raised on appeal are: (1) whether the trial court erred in denying plaintiffs' motion for change of venue; and (2) whether the trial court erred in denying plaintiffs' motion to set aside the verdict and grant a new trial.

In a lawsuit filed October 18, 1984, plaintiffs alleged that medical malpractice by defendants increased the severity of plaintiff Patrick Hockett's condition (a brain tumor) and diminished the likelihood of successful treatment. Plaintiff Patrick Hockett's father was named as a party plaintiff due to Patrick's minor status at the time the complaint was filed. A jury trial began on April 20, 1987.

On the first day of trial, plaintiffs presented an oral motion for change of venue, alleging that they could not receive a fair trial in Bond County. In support of their motion, plaintiffs contended that defendant John Dawdy is known by many of the potential jurors in the county and that five of eight physicians practicing full time in the area were currently employed by defendant McCracken-Dawdy Family Practice Center. Further, one of the physicians employed at McCracken-Dawdy Family Practice Center was also a member of the board of directors at Utlaut Hospital, one of the largest employers in Bond County. According to plaintiffs, these factors made it unlikely that they would receive a trial by a fair and impartial jury in Bond County. The trial court deferred ruling on plaintiffs' motion for a change of venue until after voir dire.

During voir dire, plaintiffs exercised six of the eight peremptory challenges allowed them. Additionally, approximately 24 potential jurors were excused for cause. Upon obtaining a panel of 12 jurors who stated individually an ability to decide the case free from bias or prejudice in favor of or against either plaintiffs or defendants, plaintiffs declined any additional challenges and accepted the jury. At that time, the trial court denied plaintiffs' motion for a change of venue.

After hearing the evidence, arguments and instructions, the jury deliberated approximately six hours before returning a verdict in favor of defendants. At plaintiffs' request, the jury was polled individually by the trial court and each juror confirmed the verdict. The trial court entered judgment on the verdict.

Subsequent to trial, Samuel Mormino, Jr., swore to an affidavit which stated that he personally contacted 5 of the 12 jurors who had served on the jury in the instant case and learned the following:

"A. That several jurors said during deliberations, 'If we find against the doctors, we won't have any doctors left in the county.' That this was reportedly said by four of five of the jurors during the deliberations.

B. That one of the jurors used Dr. Dawdy as her personal physician.

C. That Foreman Dan Hinkle raised his voice to Donna Krummel one of the jurors in favor of the plaintiff and ...


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