Illinois Appellate Court Affirms Defense Verdict in Medical Malpractice Lawsuit, Polling Deadlocked Jurors

In this medical malpractice lawsuit, the plaintiff claimed the judge’s questioning of “Juror 3” coerced a verdict. The judge gave a Prim instruction (Illinois Pattern Jury Instruction, Civil No. 1.05; People v. Prim, 53 Ill.2d 62 (1973)) on the second day of deliberation after receiving two jury notes.

The first note said: “We are gridlocked at 11 to 1. We have tried persuading said person, but there is a refusal to listen to the law.”

In the second note, Juror 3 asked: “If I’ve reached my decision and the 11 won’t rest it, yet continue to try and sway my decision, at what point can this end?” A day later, when Juror 3 said that she was “experiencing elevated blood sugars and chest pain due to the stress of this deliberation,” the judge followed up with the second Prim instruction (I.P.I. Civil No. 1.06).

The Prim instruction informs the jury of the requirement that the verdict must be unanimous; that the jury has a duty to deliberate; that jurors must impartially consider the evidence and that jurors should not hesitate to reexamine their views and change their opinions if they believe them to be true.

The juror then came back with a unanimous verdict for the defendant a few hours later, but Juror 3 backtracked during polling.

The judge continued questioning all of the jurors so Juror 3 wasn’t singled out. Sending the jury back for more deliberation, the judge explained: “Ladies and gentlemen, I am unable to enter a judgment on a verdict unless I find that it represents the unanimous verdict of all 12 of you, and I am not able to make that conclusion in light of the polling. I am giving you brand new Verdict Forms A and B along with special interrogatories, and I’m asking you to take them back into the jury deliberation and see if you can reach a unanimous verdict. Please stand and continue to deliberate.”

Ninety minutes later, the jurors returned with another verdict for the defendants but this time the polling was unanimous.

On appeal, the Illinois Appellate Court affirmed, finding that the trial judge did not abuse her discretion. The appeals panel found that Juror 3 was not improperly isolated by being questioned immediately after she dissented from the jury verdict. The trial judge succinctly confirmed that Juror 3 had changed her mind and then the court continued to poll the rest of the jury.

The trial court’s procedure was neutral, efficient, and consistent with the holding in Freeman v. City of Chicago, 2017 IL App (1st) 153644. In Freeman, the jury returned its verdict for the plaintiff, but when it polled, one juror replied that the verdict was not a voluntary verdict and that she signed the verdict form “under duress,” because they were told they wouldn’t be let out of the room.

After polling the rest of the jury, the trial judge asked the dissenting juror to explain what she meant by “duress.” The judge emphasized that the juror is not to disclose anything about the deliberation, because those were “private.” But the judge asked, “Do you want this to be your verdict, the verdict I read in court?”

And the juror responded, “No.” The judge asked the jurors to return to the jury room, discuss the matter with the attorneys, and then sent the jury home for the evening, so the issue could be researched. The dissenting juror remained in the courthouse in an attempt to speak to the judge, but the judge refused the request. The next morning, the judge rejected counsel’s argument that it would be best to inquire about the other jurors’ “coercion” of the dissenting juror. The court noted, “She used the word duress. But I think if counsel would agree, part of serving on a jury is stressful. You are asked to reach an important decision affecting the lives of several people. So, by its nature it is going to be a stressful process.”

Instead, the judge then gave clean verdict forms to the jury and asked them to continue their deliberations. Within minutes of resuming deliberations, the jury returned with a unanimous verdict. The judge polled the jury again and all members affirmed the verdict.

The appellate court affirmed the verdict. The appellate court indicated the trial judge had properly questioned the juror after she expressed, during polling, that the verdict did not represent her decision in the case. The appellate court also indicated the judge properly proceeded to give the jury clean verdict forms and correctly asked them to resume their deliberations.

In this case, when the jury returned with their third verdict form, all the jurors stated that the verdict was correct. The judge entered the verdict and denied the plaintiff’s motion for a new trial. The trial judge in this case did not make some of the same mistakes that had been cited in other appellate court cases. Rather, the judge properly polled all of the jurors, ensuring that no one juror would feel isolated or coerced through the polls. Moreover, the trial judge emphasized before both polls, most importantly before the second poll, the critical purpose being served by the process.

Accordingly, this appellate court stated that it was not persuaded that the trial judge abused her discretion in instructing and polling the jury. Having considered the instructions to the jury as a whole, the appellate court concluded that the instructions were proper, the trial judge’s decision and conduct were not coercive, and the entry of the judgment on the jury’s verdict was proper.

Pineiro v. Advocate Health and Hospitals, et al., 2020 IL App (1st) 191638-U (Oct. 21, 2020).

Kreisman Law Offices has been handling medical malpractice lawsuits, nursing home negligence cases and birth trauma injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Harwood Heights, Park Ridge, Des Plaines, Morton Grove, Glenview, Arlington Heights, Barrington Hills, Long Grove, Fort Sheridan, Lake Bluff, Waukegan, Crystal Lake, Schaumburg, Schiller Park, Hanover Park, Maywood, Cicero, Oak Lawn, Olympia Fields, Alsip, South Holland, Justice, Chicago (Wrightwood, Beverly, Roscoe Village, Roseland, Chatham, Woodlawn, South Shore, South Chicago, Jeffrey Manor, Pullman, Pilsen, Windsor Park, Grand Crossing, Douglas, Armour Square, Wicker Park, Bucktown, Horner Park, Albany Park, Montclare), Forest Park, Crestwood, Itasca, Rosemont and Elmhurst, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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