Illinois Court Affirms Lack of Trial Objections Forfeits Right to Review of Evidentiary Rulings – Guski v. Raja

There’s an old saying that there are two sides to every story – in civil litigation, the plaintiff’s attorney present one side of the story to the jury while the defendant’s attorney presents the other. In order to ensure that the facts are fair and that neither party presents information to the jury that would unfairly prejudice it towards the other side, the trial judge rules on motions in limine prior to the trial.

Each side prepares its own motions in limine, which set out various evidence and testimony that it feels should be excluded from the trial. Each motion includes not only a recitation of which evidence the party seeks to exclude, but also an argument as to why that specific evidence should be excluded from the civil trial. The judge then makes the final ruling on each motion in limine. If the judge rules to exclude the evidence, then neither side may bring it up during trial. However, if the judge denies a motion in limine, then that evidence is free game.

The Illinois attorneys involved in Guski v. Raja, No. 1-10-0108 (May 10, 2011), went through this motion in limine process prior to the Illinois medical malpractice trial. The judge granted some motions, but denied others, including one of plaintiff’s motions regarding the decedent’s marijuana use. After the jury found in favor of the defendant doctor, the plaintiff sought a retrial based on the the trial court’s erroneous motion in limine rulings and the defense’s unfair closing argument.

The medical malpractice lawsuit arose after Gerald Parkison died just four days after being evaluated in Ingalls Memorial Hospital’s Emergency Room. During his emergency room visit, Mr. Parkison was diagnosed with an upper respiratory infection, yet he eventually died from a bleed in his brain. The plaintiff’s attorneys claimed that Mr. Parkison had the sign and symptoms of his brain hemorrhage while he was visiting the emergency room just four days prior.

According to the plaintiff’s attorney, the emergency room physician’s incomplete assessment of Mr. Parkison’s condition resulted in it going undiagnosed for several more days and his eventual death. Under this theory of liability, if Dr. Raja, the emergency room physician, had adequately assessed the patient and appropriately charted his findings in the medical record, then additional tests would have been ordered. Specifically, it was the opinion of the plaintiff’s experts that a brain CT would have showed Mr. Parkison’s pending subarachnoid hemorrhage, leaving enough time for him to prevent his death.

However, the defendants argued that the decedent’s death was not caused by a brain hemorrhage, which was partially supported by the fact that the autopsy report only demonstrated that the brain hemorrhage was the most likely cause, not that it was the definitive cause. Instead, the defense suggested that Mr. Parkison’s death was caused by a heart attack, brought on by blocked arteries. In addition, the defense pointed to the fact that Mr. Parkison smoked marijuana, which has been shown in rare occasions to cause people to pass out, could have contributed to his death.

In its motions in limine, the plaintiff sought to bar evidence referencing Mr. Parkison’s marijuana use, stating that it could prejudice the jury against him. However, the court allowed this evidence, siding with the defense’s reasoning that it served to demonstrate that an aneurysm was not the only reason Mr. Parkison might have passed out. The defense did go on to produce this evidence at the wrongful death trial, at which point the plaintiff attorney made no objection.

The trial court then granted the defendant’s motion to eliminate any reference to the number of times the defendant doctor had failed the medical board certification exam for internal medicine. The judge reasoned that since Dr. Raja was only testifying as an occurrence witness and not as a medical expert, that information regarding his board certification was immaterial. This ruling is consistent with a recent appellate court decision in Lisa Babikian v. Richard Mruz, No. 1-10-2579, where the court held that testimony regarding a treating physician’s board certification could be introduced if the physician was also testifying as a medical expert. However, when Dr. Raja began to offer expert testimony in Guski the plaintiff’s attorney made no objection.

The plaintiff attorney’s lack of objections were at the heart of the appellate court’s analysis of Guski, and seemed to be the deciding factor in its affirmation of the trial court’s ruling. In Illinois, in order for a court to review a lower court’s evidentiary ruling, a party must properly preserve the issue by somehow getting the disagreement on the record. The requirement for preserving objections to evidentiary rulings is meant to prevent the losing party from inventing new issues post-trial in an effort to force a retrial.

Because a judge’s rulings on motions in limine are considered interlocutory, i.e., a temporary or provisional decision on an issue, and may be reconsidered by the court throughout the duration of the trial. Because these rulings are not final they may be overturned by the trial judge if new evidence for doing so is presented by either party. Therefore, in order to preserve an issue with a judge’s pretrial ruling, the party must also make an objection to the introduction of the evidence during the trial itself. If this is not done, then it is assumed that the party forfeits its claim to the review of that issue on appeal.

Therefore, the appellate court dismissed the plaintiff attorney’s claim that it was not required to make “a useless court objection” because the trial judge had been so definitive in his pretrial ruling that one could “conclude that [the court] would continue to make the same ruling.” Regardless of the strength of the court’s ruling, the party must renew those objections in order to give the court an opportunity to review the admissibility of the evidence at issue. The plaintiff attorney did not object when the defense introduced evidence regarding the decedent’s drug use, nor when the defendant began testifying as a medical expert. Therefore, she did not preserve the issue and as a result forfeited the issue for review, resulting in the appellate court’s affirmation of the medical malpractice jury verdict.

Kreisman Law Offices has been handling Illinois wrongful death lawsuits for individuals and families for more than 35 years in Chicago and surrounding areas, including Tinley Park, Western Springs, Calumet Park, and Elk Grove Village.

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