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Hojek v. Harkness

June 30, 2000

LINDA HOJEK,
PLAINTIFF-APPELLANT,
V.
KATHLEEN HARKNESS,
DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

Honorable William Taylor, Judge Presiding.

During jury deliberations in this personal injury case, the jury sent a question to the trial court asking: "Were medical expenses covered by insurance?" Both counsel for plaintiff and defense returned to the courtroom within minutes of being notified about the jury's question. At that time, the trial judge was involved in another trial. The jury in this case continued to deliberate and reached a verdict before receiving any response to its question. On appeal, plaintiff argues that the court's failure to answer the jury's question, while allowing deliberation of the jury to continue, when a jury instruction specifically addressed the issue of insurance, prejudiced plaintiff and denied her a fair trial. We agree and reverse and remand for a new trial.

FACTS

On December 16, 1995, plaintiff was in a car accident with defendant. Plaintiff testified that, after the accident, she felt pain in her left neck and shoulder, and in her abdomen. Because plaintiff was seven months pregnant, she initially received treatment from her obstetrician. After the birth of her child, plaintiff continued to have pain in her neck and shoulder. She testified that the pain continued to worsen, that it radiated down her arm, and that it caused numbness. Plaintiff stated that she could no longer engage in the active life she enjoyed before the auto accident. She then sought treatment from a variety of physicians, including orthopedists, a neurosurgeon, a physicist, and rehabilitation therapists. Diagnostic tests revealed that plaintiff suffered from herniated disks, and her treating physician testified that the auto accident caused these herniated disks. The parties stipulated that her medical bills were $14,232.25. Plaintiff's treating physician also testified that her injuries were permanent and that she would need future care and treatment. As a result, plaintiff's counsel asked the jury to award her damages in an amount between $288,000 and $394,000.

At trial, defendant admitted her liability in the accident but challenged the nature and extent of plaintiff's injuries. Defendant contended that plaintiff merely sustained a "soft tissue" injury and called her own expert medical doctor in support of this theory. Defendant's expert witness testified that plaintiff suffered from progressive degenerative disease that pre-existed the auto accident. According to defendant's expert, the auto accident did not cause or aggravate plaintiff's pre-existing condition and did not cause her herniated disks. Based on this testimony, defense counsel requested that the jury award plaintiff an amount between $5,000 and $10,000.

According to the uncontested affidavit of plaintiff's counsel and the statements of the trial court on the record, the following series of events occurred during jury deliberations. At approximately 2:50 p.m., the jury began deliberations. Within the next hour, the jury sent the following question to the trial court, "Were medical expenses covered by insurance?" At 3:55 p.m., the judge's sheriff notified counsel for both parties by telephone that the jury submitted a question, and they agreed to return to court. Plaintiff's counsel arrived at the courtroom first about 4 p.m., and defense counsel arrived about 4:10 p.m. Although the trial judge was engaged in another trial, before defense counsel arrived, the judge briefly stopped the trial and told plaintiff's counsel that he would give him the jury's question and a proposed reply when defense counsel arrived. The court resumed the second trial. Defendant's counsel arrived about 10 minutes later, at about 4:10 p.m. The sheriff at that point, provided both counsel the jury's question and the court's proposed answer to the jury's question. Specifically, the trial court proposed to answer the question with Illinois Pattern Jury Instruction, Civil, No. 2.13 which states: "[w]hether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance." IPI Civil 3d No. 2.13. Illinois Pattern Jury Instructions, Civil, No. 2.13 (3d ed. 1995) (hereinafter IPI Civil 3d No. 2.13). Plaintiff's counsel agreed to the instruction, but defense counsel objected to answering the question with the instruction and wanted the trial judge to rule on the objection. The judge, however, did not interrupt the second trial to rule on the objection. The jury in this case continued deliberating and its question regarding insurance went unanswered. Around 5 p.m. the jury informed the court that it had reached a verdict. The trial court then received the verdict from the jury in this case.

The jury awarded plaintiff $21,000 itemized as follows: $8,000 for loss of normal life; $8,000 for past pain and suffering, and $5,000 for past medical expenses. The jury awarded plaintiff no damages for future pain and suffering and for future medical expenses. After the verdict was read, plaintiff's counsel moved for a mistrial based on the court's failure to answer the jury's question. At that point, the trial court conducted a side bar and heard argument. The following discussion occurred between the court and plaintiff's counsel:

"THE COURT: The jury had a question. While the question was given and we put a phone call out to plaintiff's and defense counsel's attorneys, they did not arrive in a timely time, and therefore I started another trial. As soon as that trial finished, I brought counsel in to see if they were ready to answer the question. In fact, I gave both plaintiff and defense counsel the question earlier before the trial, along with my proposed answer, which would have said, 'Whether [sic] a party's insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.' I gave my deputy the question and my proposed answer to plaintiff's counsel and said if they had no problem, I would hand that to the jury. The jury obviously decided that they didn't need to wait for my answer in terms of their question and therefore they reached a verdict.

[PLAINTIFF'S COUNSEL]: Plaintiff's counsel had no objection to the question. It was defendant's counsel who wanted to wait to speak to the court relative to the instruction being given.

THE COURT: Right. And we were in closing argument in another trial, and therefore I would not stop the other trial since this trial already took three days of other court's time [sic]. And the other trial had been waiting for the whole day to get their trial done while this trial was finished. And since they had waited patiently till 3:00 o'clock to start a new trial, I felt they had the right to finish the trial. Therefore motion for mistrial is denied."

The court then entered judgment on the verdict. Plaintiff argued in her posttrial motion that the court's failure to answer the jury's question as to whether medical expenses were covered by insurance while allowing deliberation of the jury to continue prejudiced plaintiff and denied her a fair trial. The court denied plaintiff's posttrial motion and this appeal followed.

ANALYSIS

The general rule is that, when a trial court receives a question from the jury during deliberations, the court has a duty to instruct the jury further or clarify the point of law that has caused doubt or confusion. Van Winkle v. Owens -Corning Fiberglass Corp., 291 Ill. App. 3d 165, 172 (1997); People v. Millsap, 189 Ill. 2d 155, 160 (2000); People v. Childs, 159 Ill. 2d 217, 228-29 (1994); People v. Reid, 136 Ill. 2d 27, 39 (1990). The trial court, however, has discretion and in exercising that discretion, depending on the nature of the question, may choose to draft an answer to a jury question, or choose to ...


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