Appeal from Circuit Court of Sangamon County No. 94L126 Honorable Sue E. Myerscough, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In February 1994, plaintiff, Carolyn McMath, sued defendant, Dr. Richard E. Katholi, for the wrongful death of her husband, Kenneth McMath. Carolyn alleged that in February 1992, Katholi committed medical malpractice by failing to discover a cardiac emergency that later caused Kenneth's death. In December 1997, the trial court conducted a three-day jury trial, and the jury returned a verdict in Katholi's favor.
Carolyn appeals, claiming that (1) members of the jury improperly discussed the case before the close of evidence, and those Discussions led to an improper verdict; (2) the verdict was contrary to the medical testimony; and (3) the trial court abused its discretion by allowing Katholi to testify as an opinion witness although he did not disclose himself in accordance with Supreme Court Rule 213 (166 Ill. 2d R. 213). We reject Carolyn's first two contentions, but we reverse and remand because we agree with her third contention.
The evidence presented at trial showed the following. On February 25, 1992, Kenneth began experiencing some chest discomfort. The next day, he visited his friend and primary-care physician, Dr. Edward Ulrich, who wrote a prescription for some indigestion Kenneth was experiencing. Ulrich also recommended that Kenneth see a cardiologist and referred him to Katholi.
The following day, February 27, 1992, Kenneth and Carolyn went from their home in Lincoln, Illinois, to Katholi's office at Prairie Cardiovascular Center (Prairie Cardiovascular), which was located in Springfield, Illinois, in the same building as St. John's Hospital (St. John's), an inpatient hospital that had an emergency room. Katholi was performing an invasive surgical procedure on another patient when Kenneth and Carolyn arrived, but his assistant, Marcey Knowles, contacted him by phone.
Knowles told Katholi that Kenneth had suffered a heart attack in 1984 and had been treated at Prairie Cardiovascular. She relayed the materials in Kenneth's old medical records to Katholi and told him that Kenneth had experienced chest discomfort and indigestion (a symptom of possible heart problems) over the past couple days and that these symptoms had awakened him at night. However, Kenneth was not experiencing symptoms at the time of the visit.
Katholi could have referred Kenneth to an on-call cardiologist for immediate evaluation or sent him to the emergency room at St. John's if Katholi determined that Kenneth needed immediate attention. Instead, Katholi told Knowles to set up an appointment the next morning for a cardiac catheterization, which is a diagnostic surgical procedure used to determine the degree of blockage in arteries around the heart. Knowles followed these instructions, and the McMaths left to go home.
Approximately 40 minutes later, in their car during the trip home, Kenneth looked down and told Carolyn, "It got dark." He then looked up, and said, "I see a light," and started breathing heavily. Carolyn used the car phone to call for help. An ambulance arrived and took Kenneth back to St. John's emergency room, where he was pronounced dead. The emergency room records indicated that Kenneth had a condition called electromechanical dissociation, which occurs when the heart receives a normal electrical signal but nevertheless fails to pump.
In February 1994, Carolyn sued Katholi, alleging that Katholi committed malpractice by failing to conduct an examination of Kenneth or refer Kenneth to another, available doctor prior to sending him home and that this omission resulted in Kenneth's death. In May 1996, in response to the trial court's discovery order, Katholi disclosed Dr. Aldred Heckman, Jr., as his only opinion witness. Katholi never updated this disclosure.
A jury trial proceeded from December 15, 1997, to December 17, 1997. On the first day of trial, Carolyn presented Dr. Ronald Riner, who opined that Katholi had violated the standard of care for a cardiac specialist by failing to have Kenneth evaluated by a colleague or to refer him to the emergency room. Riner also opined that Kenneth had unstable angina, which is a condition whereby the heart muscle is deprived of its blood supply, and that Kenneth's angina caused him to suffer a heart attack during the trip home from Katholi's office.
As part of this testimony, Riner discussed the possible causes of Kenneth's electromechanical dissociation. Riner explained that the death of the heart muscle itself could lead to electromechanical dissociation and that Kenneth's angina could have caused the heart muscle to die.
On the second day of trial, Heckman testified that Katholi did not breach the standard of care for a cardiac specialist. Heckman also discussed the possible causes of electromechanical dissociation. One possible cause was a myocardial infarction, which is the occlusion of one of the arteries providing blood to the heart muscle. Another possible cause was sudden internal bleeding, which occurs when an aneurysm ruptures. Heckman stated that based on the medical records, he could not conclude what caused Kenneth's death.
On the third day of trial, Carolyn filed a motion captioned "Plaintiff's Third Motion In Limine," in which she sought to bar Katholi from testifying on his own behalf regarding the cause of Kenneth's death because Katholi had not disclosed himself as an opinion witness. The trial court denied the motion.
Katholi testified that the electromechanical dissociation noted in the emergency room records was inconsistent with Kenneth's having a heart attack. Accordingly, Katholi opined that Kenneth died from "a complication of his gastroesophageal reflux," which is a gastric condition that commonly causes heartburn. Katholi explained that he believed acid from Kenneth's stomach ate through the junction connecting the esophagus and the stomach, which is located near a major artery. According to Katholi, the acid then ate through this artery, caused massive internal bleeding, and led to Kenneth's electromechanical dissociation and his death.
After the jury returned a general verdict in Katholi's favor, Carolyn filed a posttrial motion, alleging the same errors she raises in this appeal. Attached to her motion was the affidavit of a juror, stating that some jurors had discussed the case and had decided in favor of Katholi before any medical testimony had been presented. The trial court allowed the affidavit into evidence over Katholi's objection but nevertheless denied Carolyn's motion.
On appeal, Carolyn argues that (1) members of the jury improperly discussed the case before the close of evidence, and those Discussions led to an improper verdict; (2) the verdict was contrary to the medical testimony; and (3) the trial court abused its discretion by allowing Katholi to testify as an opinion witness although he did not disclose himself in accordance with Supreme Court Rule 213. We agree only with Carolyn's third argument.
Relying on a juror affidavit, Carolyn first contends that the verdict resulted from improper jury Discussions prior to the close of evidence. The central question is whether Carolyn may impeach the verdict with a juror affidavit. We conclude that she cannot.
As a general rule, testimony of jurors is inadmissible to impeach the jury's verdict. DiMarco v. City of Chicago, 278 Ill. App. 3d 318, 326, 662 N.E.2d 525, 531 (1996). In People v. Holmes, 69 Ill. 2d 507, 516, 372 N.E.2d 656, 660 (1978), the Supreme Court of Illinois adopted Rule 606(b) of the Federal Rules of Evidence, which contains the only exception to the general prohibition of juror testimony. Rule 606(b) states, in relevant part, as follows:
"Inquiry into validity of verdict ***. Upon an inquiry into the validity of a verdict ***, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or Dissent from the verdict *** or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes." 28 U.S.C. app. Fed. R. Evid. 606(b) (1994). (The above-quoted language of Rule 606(b) is slightly different than it was at the time the Holmes court adopted it. However, the change of language is non-substantive and not relevant to this appeal.)
Under this rule, jurors may testify about their exposure to extraneous information, meaning facts not in evidence and not within the knowledge and observation of the jurors in the affairs of life. However, they may not attempt to explain the effect of that information on the deliberative process. People v. Hobley, 182 Ill. 2d 404, 462, 696 N.E.2d 313, 341 (1998); Waller v. Bagga, 219 Ill. App. 3d 542, 546, 579 N.E.2d 1073, 1074 (1991), citing Holmes, 69 Ill. 2d at 511-12, 372 N.E.2d at 658.
The affidavit presented to the trial court in this case did not come within the exception described in Holmes. Instead, it contained information pertaining solely to the conduct of jurors and their Discussions in the jury room. Irregularities taking place during deliberations do not constitute the type of extraneous influence contemplated by the Holmes court. In fact, that court discussed this very issue and wrote the following:
"[T]here appears to be `substantial authority' which, while allowing the testimony of a juror as to irregularities occurring outside the jury room, refuses to allow a juror to disclose irregularities which occur in the jury room." Holmes, 69 Ill. 2d at 515, 372 N.E.2d at 660.
In Hobley, a criminal defendant sought to use juror affidavits to establish that the jury foreperson was a police officer who had shown the other jurors his gun on the first day of the trial and had intimidated the other jurors into reaching a guilty verdict. Hobley, 182 Ill. 2d at 463, 696 N.E.2d at 341. Although the defendant sought to characterize the foreperson's conduct as improper extraneous influence, the supreme court concluded that the juror affidavits pertained only to the deliberative process by which the verdict was reached. Hobley, 182 Ill. 2d at 463, 696 N.E.2d at 342.
Our Conclusion follows directly from these authorities; the affidavit describing premature jury Discussions pertained only to the deliberative process. Although the trial court erred by allowing the juror affidavit into evidence, the court nonetheless correctly rejected Carolyn's contention regarding improper jury Discussions.
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