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Laurensa Fleming and Lorenzo Weaver v. Arthur Moswin

August 13, 2012

LAURENSA FLEMING AND LORENZO WEAVER,
SPECIAL CO-ADMINISTRATORS OF THE ESTATE OF LAWRENCE
FLEMING, JR., DECEASED,
PLAINTIFFS-APPELLANTS,
v.
ARTHUR MOSWIN, HYDE PARK ASSOCIATES IN MEDICINE, LTD., A CORPORATION, AND MARK SCHACHT, DEFENDANTS-APPELLEES ROBERTO RAMIREZ,
DEFENDANT.



Appeal from the Circuit Court of Cook County. No. 05 L 5802 Honorable Edward Washington, II, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

Modified upon denial of rehearing

OPINION

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justice Karnezis concurred in the judgment and the opinion.

Justice Hall dissented, with opinion.

¶ 1 This matter is now before this court for the second time. Plaintiffs-appellants, Laurensa Fleming and Lorenzo Weaver, special co-administrators of the estate of Lawrence Fleming, Jr., deceased, initially brought this medical malpractice action to recover damages following decedent's death of bladder cancer in 2004. A directed verdict was entered in favor of defendant Roberto Ramirez, M.D, and--following a jury trial--judgment was entered in favor of defendants-appellants, Arthur Moswin, M.D., his employer, Hyde Park Associates in Medicine, Ltd., a corporation (collectively, Dr. Moswin), and Mark Schacht, M.D. Plaintiffs appealed, contending that the trial court improperly denied their posttrial motion for a new trial because: (1) Dr. Schacht exercised a peremptory challenge against a prospective juror in violation of the principles espoused in Batson v. Kentucky, 476 U.S. 79 (1986); and (2) evidence was admitted at trial in violation of both the Dead-Man's Act (735 ILCS 5/8-201 (West 2008)) and the general rule against hearsay.

¶ 2 In our original order, we found that there had been an apparent failure on the part of the trial court to conduct a proper Batson analysis. Fleming v. Moswin, 2012 IL App (1st) 103475-U. We, therefore, retained jurisdiction over this appeal and remanded this matter to the trial court for the limited purpose of allowing the trial court to conduct a proper Batson analysis and to file amended findings of fact and conclusions of law with this court. Id. ¶¶ 45-46. Pursuant to that order, the trial court has now filed an "Order on Remand" in which it found that a Batson violation did indeed occur during jury selection and, therefore, plaintiffs' motion for a new trial should now be granted. Additionally, all parties on appeal have also filed supplemental briefs in accordance with our prior order. Id.

¶ 3 For the following reasons, we affirm the trial court's initial denial of plaintiffs' posttrial motion for a new trial.

¶ 4 I. BACKGROUND

¶ 5 Because some of the relevant factual background was fully set out in our prior order (Fleming, 2012 IL App (1st) 103475-U, ¶¶ 4-17), we recite here only those facts necessary for our consideration of the matters now pending before this court.

¶ 6 In their pleadings, plaintiffs generally alleged that the named defendants were involved in the evaluation and treatment of decedent's complaints of a host of urinary difficulties and related issues throughout 2002 and 2003. Plaintiffs alleged that as a result of various acts of negligence on the part of defendants, the diagnosis of decedent's bladder tumor was significantly delayed, and this delay contributed to decedent's death from metastatic bladder cancer in August of 2004.

¶ 7 The parties' discovery disclosures reveal additional detail about the issues and evidence to be presented at trial. Plaintiffs intended to present evidence, including expert opinions, establishing that decedent was evaluated by an internist, Dr. Moswin, in 2002 for complaints of urinary frequency and blood in his urine, but Dr. Moswin improperly failed to refer decedent to a urologist for more specialized care. They would also attempt to establish that decedent was, ultimately, evaluated and treated in 2003 by a urologist, Dr. Schacht. However, Dr. Schacht violated the standard of care by--among other things--failing to have decedent undergo a cystoscopy to determine the cause of his symptoms. Finally, plaintiffs would produce evidence that decedent's new internist, Dr. Ramirez, failed to properly coordinate the decedent's care with Dr. Schacht in 2003. As a result of all these failures, decedent's bladder cancer was not discovered until another doctor finally ordered a cystoscopy in late 2004.

¶ 8 In turn, defendants would provide evidence and expert opinions refuting plaintiffs' contentions. Of particular relevance here, Dr. Schacht was expected to present a defense which included evidence that he repeatedly offered to perform a cystoscopy throughout 2003, but decedent consistently refused.

¶ 9 The matter proceeded to a jury trial in December of 2009. Prior to trial, the trial court addressed a number of motions in limine filed by the parties. These included plaintiffs' motion to bar or limit certain testimony regarding Dr. Schacht's care of the decedent.*fn1 Specifically, plaintiffs indicated that they intended to present evidence regarding Dr. Schacht's failure to order a cystoscopy on any of the many occasions he evaluated or treated decedent between March and November of 2003. They also intended to offer expert opinions that each of these failures constituted a violation of the standard of care, and that the delay in performing this procedure contributed to decedent's death in 2004. However, plaintiffs contended that Dr. Schacht should not be permitted to testify regarding any conversations he had with decedent on these occasions--including any conversations where decedent purportedly refused a cystoscopy--because such conversations were inadmissible pursuant to the Dead-Man's Act. See 735 ILCS 5/8-201 (West 2008) ("In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***.").

¶ 10 Dr. Schacht challenged plaintiffs' motion. He contended that by indicating their intent to offer evidence and opinions regarding each of his meetings with decedent, plaintiffs were necessarily also indicating a waiver of the protections of the Dead-Man's Act by implicating a statutory exception contained therein. See 735 ILCS 5/8-201(a) (West 2008) ("If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event."). Dr. Schacht further cited to a number of opinions applying this exception in similar circumstances. See Hoem v. Zia, 159 Ill. 2d 193, 201-02 (1994) (applying this exception in a medical malpractice action where plaintiff estate introduced evidence of decedent's interactions with defendant doctor, as allowing the estate to do so without allowing the defendant doctor the opportunity to give his version of events "would not advance the policy behind the Act"); Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 13 (2002) (same).

¶ 11 After extensive discussion of this motion, the trial court indicated that the exception would apply at trial. Dr. Schacht would, therefore, be allowed to refute plaintiffs' assertions by testifying about his conversations with decedent if plaintiffs first "opened the door" by introducing evidence regarding the specific occasions when those conversations took place.

¶ 12 The matter proceeded to a jury trial in December of 2009. Jury selection for the trial began with each side being given seven peremptory challenges, with an additional challenge awarded to each side for use in selecting alternate jurors. The defense side split their seven challenges, with four challenges awarded to Dr. Moswin and three challenges awarded to Dr. Schacht. Dr. Schacht used two of his three challenges and, on both occasions, he excused African-Americans. Specifically, Dr. Schacht excused juror No. 13, Ian Okosi, and juror No. 21, Betty Riley. Following Dr. Schacht's challenge to Ms. Riley, plaintiffs raised a Batson challenge to Dr. Schacht's use of peremptory challenges.

¶ 13 The trial court rejected plaintiffs' Batson challenge, and the jury, ultimately, included three African-American jurors with an additional two Caucasian jurors serving as alternates.

¶ 14 After the jury was selected, plaintiffs again raised the issue of Dr. Schacht's testimony regarding his conversations with decedent. Plaintiffs argued that defendants should not be able to argue in opening statements that decedent did not consent to a cystoscopy because no testimony had yet been heard, and the exception contained in the Dead-Man's Act had, therefore, not yet been implicated.

¶ 15 In the context of making this argument, plaintiffs indicated that they were now going to limit their evidence against Dr. Schacht to a single claim that he violated the standard of care by failing to order a cystoscopy the very first time he evaluated decedent in March of 2003. It was uncontested that Dr. Schacht did not recommend, and decedent did not reject, such a procedure on that date. Because plaintiffs would not introduce any evidence regarding Dr. Schacht's subsequent interactions with decedent, plaintiffs, therefore, asserted that the trial court's prior ruling on their motion in limine was no longer applicable. Thus, Dr. Schacht should be barred from introducing any evidence of his subsequent conversations with decedent at trial and should not be permitted to reference such conversations in opening statements.

¶ 16 The trial court rejected this argument. The trial court reasoned that because plaintiffs were seeking to hold Dr. Schacht accountable for the entire delay in performing the cystoscopy from March to November of 2003, they had sufficiently opened the door to allow Dr. Schacht to offer his explanation for that delay. Another separate oral motion to bar Dr. Schacht's testimony regarding decedent's refusal to consent to a cystoscopy on the grounds that such statements were inadmissible hearsay was, subsequently, denied.

¶ 17 At trial, the evidence largely mirrored the allegations and defenses noted above. Notably, plaintiffs' examination of their own expert during their case-in -chief included questioning regarding a number of Dr. Schacht's interactions with decedent in 2003. Plaintiffs' expert opined that Dr. Schacht had violated the standard of care by failing to perform a cystoscopy on any of those occasions, even if decedent had expressed reservations about undergoing the procedure. Dr. Schacht, in defense, testified regarding his recommendations that a cystoscopy be performed and decedent's repeated refusal to consent to such a procedure. The jury, ultimately, returned a verdict in favor of defendants.

¶ 18 The trial court, subsequently, denied plaintiffs' posttrial motion for a new trial. In that motion, plaintiffs reasserted that the trial court had improperly denied their allegations of a Batson violation with respect to Dr. Schacht's use of peremptory challenges and, also, reasserted the evidentiary challenges raised both before and during trial. With respect to plaintiffs' Batson challenge to the exclusion of Ms. Riley, the trial court concluded: "After reflecting on the matter, the Court finds that the Plaintiff made a prima facie case under Batson with respect to Ms. Riley #21. The defendant failed to provide a race-neutral explanation for excluding Ms. Riley by the manifest weight of the evidence ***." However, the trial court then went on to further consider whether plaintiffs had met their burden to establish purposeful discrimination. As part of that discussion, the trial court noted: (1) three African-American jurors were, ultimately, accepted and served on the jury, a proportion similar to the proportion of African-Americans on the overall venire; (2) peremptory challenges to potential African-American jurors were exercised nonconsecutively, with African-American jurors accepted on to the jury both before and after such challenges; and (3) Dr. Schacht had a peremptory challenge that was left unused and was, thus, not used to strike additional African-American members of the venire. The trial court, ultimately, found "no purposeful discrimination occurred," explaining:

"Considering the totality of the circumstances, including the racial makeup of the resulting jury, the Court rules that the Plaintiff's [sic] received a fair trial, and that no retrial is required under Batson. The Plaintiff[s] failed to meet the ultimate burden of establishing a pattern [of] purposeful discrimination. Accordingly, there was no error, and Plaintiffs' motion for a new trial on this should be denied."

¶ 19 With respect to Dr. Schacht's testimony, the trial court again rejected plaintiffs' contentions regarding the Dead-Man's Act. Specifically, the trial court reasoned that the evidence presented by plaintiffs indicating that "Dr. Schacht breached his standard of care raises the inference that no cystoscopy was recommended, thereby opening the door for Dr. Schacht's testimony on this particular subject."

¶ 20 Plaintiffs, subsequently, appealed the denial of their posttrial motion to this court, although their arguments on appeal were limited to their Dead-Man's Act and hearsay evidentiary challenges and an assertion that there was a Batson violation with respect to Dr. Schacht's use of a peremptory challenge against Ms. Riley.

¶ 21 In our prior order, our discussion was limited to plaintiffs' Batson argument. Fleming, 2012 IL App (1st) 103475-U, ¶ 23. We acknowledged that "in addressing a Batson challenge, the trial court must follow a 'methodical three-step approach' " (id. ¶ 33 (quoting People v. Davis, 233 Ill. 2d 244, 249 (2009) (Davis II))) and, we further noted, "a number of ways in which the trial court's consideration of plaintiffs' Batson challenge to the exclusion of Ms. Riley from the jury failed to properly follow the specific, three-step analysis" required (id. ¶ 35). We, thus, found that "[w]here there has been an apparent failure to conduct the proper Batson analysis, we are required to 'remand this cause to the trial court for an expedited hearing for the limited purpose of allowing the trial court to conduct the proper Batson analysis.' " Id. ¶ 45 (quoting People v. Martinez, 317 Ill. App. 3d 1040, 1046 (2000)). Therefore, we declined to address plaintiffs' evidentiary challenges, remanded for a proper Batson analysis as to the challenge to Ms. Riley, instructed the trial court to file amended findings of fact and conclusions of law on that issue with this court, and retained jurisdiction over this matter to address all pending matters following the proceedings on remand. Id. ¶¶ 45-46.

¶ 22 The trial court, subsequently, filed a 21-page "Order on Remand" with this court. In that order, the trial court noted that we remanded for further consideration of the Batson issue because we had concluded that the trial court may initially have "incorrectly condensed and fused the three separate steps of the Batson analysis." The trial court also recognized that we had expressed a concern that the trial court may have originally found that an improper exclusion of Ms. Riley would not require a new trial so long as other evidence--including the racial composition of the members of the venire actually selected to serve on the jury--indicated plaintiffs had received a fair trial. The trial court, thereafter, proceeded to conduct an amended, delineated, three-step Batson analysis. At the conclusion of that analysis, the trial court found that the "circumstances of the proceedings establish that Ms. Riley was excluded on the basis of race in violation of Batson," and "[t]herefore, plaintiffs' motion for a new trial is granted." The parties, thereafter, filed supplemental briefs with this court addressing the trial court's order on remand, and the matter again stands ready for our further consideration.

¶ 23 II. ANALYSIS

¶ 24 We now turn to the three issues presently facing this court in light of the trial court's amended findings of fact and conclusions of law. These issues include: (1) plaintiffs' assertion that this appeal is now moot; (2) the propriety of the trial court's amended finding that a Batson violation did indeed occur in this matter; and (3) the Dead-Man's Act and hearsay issues left unaddressed in our original order.

¶ 25 A. Mootness

¶ 26 Plaintiffs note in their supplemental brief that upon remand, the trial court reversed its original ruling denying their motion for a new trial and concluded that--in light of its amended finding that a Batson violation had, in fact, occurred with respect to the peremptory challenge to Ms. Riley--"plaintiffs' motion for a new trial is hereby granted." Plaintiffs contend that because they have now received all of the relief they initially sought in filing this appeal, no actual controversy remains, this appeal is moot, and this court should dismiss their appeal and remand the matter to the trial court for a new trial.

¶ 27 " 'An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party.' [Citation.] Generally, courts of review do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided. [Citation.]" In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010). As such, if this appeal were truly rendered moot by the trial court's decision to grant plaintiffs a new trial in its order on remand, we would indeed decline to address any issues now pending on appeal--unless certain inapplicable exceptions to the mootness doctrine applied here. Id. We find that this appeal is not moot, however, because the trial court did not have the authority to grant plaintiffs a new trial upon remand.

¶ 28 It is well recognized that "a reviewing court's mandate vests a trial court with jurisdiction only to take action that complies with the reviewing court's mandate. [Citation.] A trial court lacks the authority to exceed the scope of the mandate, and must obey precise and unambiguous directions on remand. [Citation.]" People v. Winters, 349 Ill. App. 3d 747, 749 (2004). Furthermore, "[t]he correctness of the trial court's action on remand is to be determined from the appellate court's mandate, as opposed to the appellate court opinion. [Citations.] However, if the direction is to proceed in conformity with the opinion, then, of course, the content of the opinion is significant. [Citations.]" PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308 (1981). Additionally, "[i]f specific directions are not given, *** then the lower court should examine the opinion and determine what further proceedings would be consistent with the opinion." People ex rel. Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 482 (1992). Finally, "[a]ny other order issued by the trial court is outside the scope of its authority and void for a lack of jurisdiction." Id. at 481.

¶ 29 Here, the mandate issued following our initial order contained no specific instructions and, therefore, both this court and the trial court look to our prior order to determine the scope of the trial court's authority on remand. In that order, we stated:

"Where there has been an apparent failure to conduct the proper Batson analysis, we are required to 'remand this cause to the trial court for an expedited hearing for the limited purpose of allowing the trial court to conduct the proper Batson analysis ***.' [Citation.] This three-step analysis should be limited solely to a consideration of the peremptory challenge to Ms. Riley, as this is the only Batson challenge plaintiffs have raised on appeal. Moreover, the trial court need not conduct an evidentiary hearing on the matter, but, rather, should make complete findings of fact and conclusions of law--consistent with this order--'on the record as it now exists.' [Citation.] Because we are remanding for further Batson proceedings, ' " 'the correct procedure' is for this court to withhold disposition of other unrelated issues, retaining jurisdiction to consider them after the Batson proceedings.' " [Citation.] We, therefore, do not consider the evidentiary challenges plaintiffs have raised on appeal at this time.

The trial court shall file findings of fact and conclusions of law on remand, together with any record of the proceedings, with the clerk of this court within 60 days of the issuance of the mandate in this matter. [Citation.] Within 14 days following the filing of these materials with this court, plaintiffs may submit to this court a supplemental brief solely addressing this issue. Defendants shall each have 14 days thereafter to file any response, and no further briefs shall be entertained without further order of this court. This court will thereafter issue a final judgment on all issues pending at that time." Fleming, 2012 IL App (1st) 103475-U, ¶¶ 45-46.

We then concluded by stating: "we retain jurisdiction over this matter, but remand this cause to the circuit court of Cook County for proceedings consistent with this order." Id. ¶ 48.

¶ 30 As our prior order made clear, we remanded this matter to the trial court for a narrow purpose, i.e., to conduct a proper Batson analysis and to make findings of fact and conclusions of law with respect to that issue. We, otherwise, specifically retained jurisdiction, and our order clearly contemplated that this matter would return to this court for further consideration after both the trial court's order on remand and the parties' supplemental briefs had been filed. Our further consideration would include a final ruling on plaintiffs' motion for a new trial, a ruling that would be made in light of the trial court's amended Batson analysis and the Dead-Man's Act and hearsay issues we specifically declined to address in our prior order.

¶ 31 We certainly understand that the trial court merely followed the findings and conclusions contained in its amended Batson analysis to their natural conclusion when it granted plaintiffs' motion for a new trial. However, we did not remand this matter to the trial court for a final ruling on plaintiffs' motion for a new trial, and that portion of the trial court's order on remand which granted that motion was, therefore, "outside the scope of its authority and void for a lack of jurisdiction." City of Highland Park, 225 Ill. App. 3d at 481. As such, the original denial of plaintiff's motion for a new trial still stands, and that decision must still be evaluated by this court in light of the trial court's amended findings and conclusions on the Batson issue. The trial court's order on remand, thus, did not grant plaintiffs all the relief they have sought, and this appeal has, therefore, not been rendered moot.

¶ 32 B. Amended Batson Findings

¶ 33 We now consider the trial court's amended Batson analysis, as reflected in its order on remand. Upon review, we find that the trial court improperly concluded that plaintiffs had established a prima facie case of discrimination in support of their Batson challenge.

¶ 34 1. Legal Framework and Standard of Review

¶ 35 As we discussed at length in our original order, "[i]n Batson, the United States Supreme Court held that, in a criminal case, the fourteenth amendment's equal protection clause prohibits a prosecutor from using a peremptory challenge to exclude a prospective juror solely on the basis of his or her race." Mack v. Anderson, 371 Ill. App. 3d 36, 43 (2006) (citing Batson, 476 U.S. at 89). This rule was extended in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), wherein the Court held: "courts must entertain a challenge to a private litigant's racially discriminatory use of peremptory challenges in a civil trial." Edmonson, 500 U.S. at 630. In addressing a Batson challenge, the trial court must follow a "methodical three-step approach." Davis II, 233 Ill. 2d at 249. Specifically, this court has recognized:

"First, the moving party must meet his burden of making a prima facie showing that the nonmoving party exercised its peremptory challenge on the basis of race. [Citations.] If a prima facie case is made, the process moves to the second step, where the burden then shifts to the nonmoving party to articulate a race-neutral explanation for excusing the venireperson. [Citations.] Once the nonmoving party articulates its reasons for excusing the venireperson in question, the process moves to the third step, where the trial court must determine whether the moving party has carried his burden of establishing purposeful discrimination. [Citations.] At the third step, the trial court ...


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