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07/11/95 VIRGINIA LIMER v. ANNE CASASSA

July 11, 1995

VIRGINIA LIMER, AS INDEPENDENT EXECUTOR OF THE ESTATE OF JAMES LIMER, DECEASED, PLAINTIFF-APPELLANT,
v.
ANNE CASASSA, AS INDEPENDENT EXECUTOR OF THE ESTATE OF HOMER C. LYMAN, DECEASED, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 88L103. Honorable W. Charles Witte, Judge Presiding.

As Corrected July 31, 1995.

Justices: Honorable John T. McCULLOUGH, J. Honorable James A. Knecht, P.j. Honorable Frederick S. Green, J. Justice McCULLOUGH delivered the opinion of the court: Knecht, P.j., and Green, J., concur.

The opinion of the court was delivered by: Mccullough

JUS TICE McCULLOUGH delivered the opinion of the court:

In this medical malpractice case, plaintiff Virginia Limer, as independent executor of the estate of James Limer (James), deceased, appeals from a judgment entered in the circuit court of McLean County in favor of defendant Anne Casassa, as independent executor of the estate of Homer C. Lyman, deceased. The timeliness of plaintiff's action and refiling after voluntary dismissal were previously considered by this court in Limer v. Lyman (1991), 220 Ill. App. 3d 1036, 581 N.E.2d 411, 163 Ill. Dec. 460 (Limer I), and Limer v. Lyman (1993), 241 Ill. App. 3d 125, 608 N.E.2d 918, 181 Ill. Dec. 667 (Limer II).

In this appeal by plaintiff, the issues are whether (1) the trial court erred by refusing to question potential jurors during voir dire concerning the jurors' beliefs regarding health care reform, legal reform, and the jury trial system; and (2) reversible error occurred when, during closing argument, defendant's counsel commented, in violation of an order in limine, that plaintiff's decedent knew the risk of smoking cigarettes. We affirm.

The trial judge conducted voir dire of prospective jurors. Among the questions proposed by plaintiff were:

"5. Since the time of the last political conventions up to the present there has been much discussion in the press and media about healthcare reform, legal reform, jury trials, etc. Do you have any quarrel with the jury system as a way of resolving disputes between parties? Do you believe in the jury trial system as a legitimate method for our society, through the voice of twelve members of the community, to decide issues when parties are unable to agree?

6. Would you agree, based on what you have heard and read, that there are some law suits filed which should not be filed because they lack merit? Would you also agree that there are law suits which have been filed which are justified and the filing party is entitled to recover for injuries sustained?"

The trial judge rejected these questions.

At plaintiff's request, the trial judge did inform the jury that, in a very real way, the parties were James and Dr. Homer Lyman, and asked the jurors whether they had any feelings that doctors should be treated differently in terms of determining liability for negligence. The trial judge did ask the plaintiff's proposed question No. 7, which stated:

"Given that you know nothing about this case, do you understand that it is your duty to set aside everything you have read or heard, and instead base your decision in this case only on the evidence you hear and the applicable law."

At defendant's request, inquiry was also made of the jurors as to whether (1) they had any preconceived notions or prejudices toward the parties, (2) they could be fair and impartial, (3) there was anything that would prevent them from being fair and impartial to both sides, and (4) they would follow the law as given.

Plaintiff has demonstrated no bias on the part of the jurors in this case. (See Cleveringa v. J.I. Case Co. (1992), 230 Ill. App. 3d 831, 860, 595 N.E.2d 1193, 1214, 172 Ill. Dec. 523.) However, plaintiff is not required to demonstrate the jury was prejudiced in order to challenge the adequacy of voir dire. ( People v. Lanter (1992), 230 Ill. App. 3d 72, 75, 595 N.E.2d 210, 213, 172 Ill. Dec. 147.) Plaintiff argues that she was deprived of an opportunity to inquire if jurors had concerns about the jury ...


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