Illinois Appellate Court Finds That Without an Objection by a Party to the Case Regarding a Jury Question, Any Later Objection Was Waived

Robert Cruz filed a lawsuit alleging medical negligence against Dr. Robert R. Schenk and Hand Surgery Ltd., his medical practice, claiming that Dr. Schenk had chosen not to follow the standard of care. In his lawsuit, Cruz said Dr. Schenk used excessive injections and failed to adequately explore or treat the superficial radial right nerve, all of which, it was claimed, injured Cruz.

The jury trial proceeded without incident, but during the jury deliberations, the jury sent two questions to the trial judge. The first one was, “Is the Jury making a decision on how Mr. Cruz got originally hurt or are we making a decision on the quality of care that . . . provided?” The second question was, “After reading the ‘proximate cause statement’ is the jury correct to assume to interpret it in the following way: That if we, the jury, believe that Dr. Schank (sic) is not the only cause for Mr. Cruz’s injury, then we decide with the defense?”

The trial judge met with the parties to discuss the court’s response. The attorney for Cruz stated that the jury’s question should be answered “specifically and accurately.” However, the lawyer did not provide what response should be given to the jury by the judge and gave no written response to the court to give to the jury.

The defendants’ lawyer requested that the jury be referred to the instructions, evidence and testimony. The trial judge agreed to do that, directing the jury to refer to the information they already had.

The court sent that answer to the jury at 3:19 p.m. At 3:30 p.m., the jury returned a verdict in favor of Dr. Schenk. Cruz filed a post-trial motion arguing that the verdict was against the manifest weight of the evidence and that the court erred in its response to the jury’s questions. The court denied his motion, and Cruz appealed.

On appeal, Cruz argued that the trial judge was wrong in his responses to the two questions from the jury and wanted a new trial. The appellate court noted that the standard of review for jury instructions is an abuse of discretion. Dr. Schenk argued that by failing to provide a written response, Cruz forfeited any objection to the decision of the trial court. Both parties relied on the same case for support of their arguments: Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill.App.3d 165 (1997).

In the Van Winkle case, there were two questions sent to the trial court asking for clarification. Counsel for the defendant in that case requested that the court answer, “Yes” to both questions, but did not submit a written response.

The plaintiff in Van Winkle objected and asked that the court tell the jury to refer back to the instructions, stating that they contained the applicable law. The court agreed with the plaintiff in the answer given to the jury. The defendant appealed. The appellate court in Van Winkle found that the trial court had abused its discretion in that the jury had asked “an explicit question that involved a substantive legal issue.” The court reversed and ruled in favor of the defendant on appeal.

Cruz argued that Van Winkle showed that a written response to jury questions was not required for an appeal; however, Dr. Schenk noted, and the appellate court agreed, that Van Winkle had explicitly laid out a new rule. The court in Van Winkle noted that a better practice would have been a written response on the part of Owens-Corning and that the court was adopting as a new rule that written responses were required, but “because we are announcing a new rule, we believe it only equitable that we apply it prospectively.”

Because Cruz’s trial was subsequent to the Van Winkle decision and the rule set forth there, his counsel was required to submit a written response in order to object to jury instructions. The court therefore affirmed the decision of the trial judge and the jury’s verdict in favor of Dr. Schenk.

Roberto Cruz v. Robert R. Schenk and Hand Surgery, Ltd., 2014 IL App (1st) 122669-U (June 30, 2014).

Kreisman Law Offices has been handling medical negligence cases, nursing home abuse cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, Richton Park, Arlington Heights, Bellwood, Calumet City, Deerfield, Evanston, Franklin Park, Gurnee, Hanover Park, Highwood, Chicago (Edgebrook), Itasca, Joliet, Lansing, Markham, Oak Park, Palatine, Palos Park, Streamwood and Vernon Hills, Ill.

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