Lange v. Freund

855 N.E.2d 162, 305 Ill. Dec. 271, 367 Ill. App. 3d 641
CourtAppellate Court of Illinois
DecidedSeptember 1, 2006
Docket1-03-0106
StatusPublished
Cited by27 cases

This text of 855 N.E.2d 162 (Lange v. Freund) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lange v. Freund, 855 N.E.2d 162, 305 Ill. Dec. 271, 367 Ill. App. 3d 641 (Ill. Ct. App. 2006).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

Michael Lange and Lindy Lange sued Mary Freund for the wrongful death of their unborn child, alleging that Freund’s negligent driving caused a collision between her car and the Langes’ vehicle, resulting in the loss of Lindy’s five-week-old pregnancy. Freund admitted negligence, but denied that the collision was the cause of the unborn child’s death. A jury returned a general verdict in favor of Freund and, via a special interrogatory, confirmed its finding that the loss of the Langes’ child was not caused by the accident. The Langes appeal, alleging that numerous errors require a new trial. For the reasons that follow, we affirm. In accordance with Supreme Court Rule 23 (166 Ill. 2d R. 23), portions of this opinion are nonpublishable; the complete text of our disposition is provided in the nonpublished order issued simultaneously with this opinion.

BACKGROUND

Michael and Lindy Lange were driving to visit Lindy’s brother and sister-in-law in Davenport, Iowa, on the evening of September 5, 1997, when the vehicle of Mary Freund, approaching from the opposite direction, made a left turn into their lane. The vehicles collided, resulting in the total loss of the Langes’ car. While the record presented to this court reveals some initial dispute about whether Mary or her husband, John Freund, was driving their vehicle at the time of the accident, John passed away shortly thereafter for reasons unrelated to the collision and the parties have not pursued the dispute in this proceeding. The Langes were taken by ambulance to a local emergency room, where Lindy was briefly examined, but neither she nor Michael was admitted to the hospital, and the record does not suggest that either of the Freunds suffered injury.

On the date of the accident, Lindy was five weeks into a pregnancy that had been achieved through in vitro fertilization. The Langes returned to the Chicago area on the Sunday following the accident and visited the offices of Lindy’s treating physician at the first available opportunity on the morning of Monday, September 8. A test of Lindy’s blood revealed that human chorionic gonadotropin (HCG), a hormone that increases in rapid and predictable levels in the bloodstream of an expectant mother during a healthy pregnancy, was present in Lindy’s system in an amount that was lower than normal for a pregnancy at her stage. Lindy was tested every few days thereafter, and each test showed HCG levels that indicated her pregnancy was not proceeding normally. On September 29, an ultrasound showed that the Lange baby’s heart was no longer beating. The child showed no signs of recovery thereafter, and on October 16, it was surgically removed from Lindy’s uterus.

The Langes filed an action in the circuit court of Cook County in which Mary Freund admitted that her negligent driving caused the collision. Issues regarding damages other than the loss of Lindy’s pregnancy were resolved prior to trial, leaving the parties to present to the jury evidence on the presence or absence of a causal link between the collision and the miscarriage, and evidence of the damages recoverable as a result of the death of an unborn child. In addition to the testimony of Lindy and Michael, the Langes presented the expert testimony of three physicians, each of whom concluded that Lindy’s miscarriage was caused by the accident. The Lange experts testified that the forces acting upon Lindy’s body when their vehicle slammed to a sudden stop from a speed of more than 30 miles per hour were sufficient to cause her internal organs to be shaken violently, rupturing the blood vessels between the uterus and the placenta. One of their experts also testified that the accident could have caused the miscarriage by producing a surge of hormones that constricted Lindy’s blood vessels, cutting blood flow to the placenta. Freund presented one medical expert, who concluded that the pregnancy had begun to show signs of difficulty before the accident. Her expert testified that, in healthy pregnancies, HCG levels double each 48 hours, and that pregnancies which failed to show this steady increase were almost certain to end in miscarriage. He further testified that the HCG levels revealed by Lindy’s September 8 test were abnormally low not only for that date but for the date of the accident, September 5. Since he had never known HCG levels to rise normally, fall, then rise again, he concluded that the postaccident HCG levels were no lower than those on the date of the accident, and that they were lower than normal before that date. Freund’s expert testified that the size of the fetus’s sac was smaller than expected at the time of Lindy’s last preaccident examination and that she displayed none of the bleeding or other signs of injury which would have been consistent with traumatically induced miscarriage; he concluded that the accident was not the cause of the miscarriage. The jury, in addition to returning a general verdict in favor of Freund, also responded “No” to a special interrogatory: “Do you find that the automobile accident of September 5, 1997 proximately caused the fetal demise on September 29, 1997?” The Langes now appeal, asserting numerous claims of trial error.

ANALYSIS

I. Court Instruction on Number of Witnesses

Immediately after closing argument, the trial court, on its own motion, remarked: “I am going to interject one thing right now. The number of witnesses on either side of the case is not dispositive of the issues or the facts as you find them.” The Langes contend that the giving of this instruction was sufficiently prejudicial to constitute reversible error.

In support of their contention, the Langes note that our supreme court’s committee on jury instructions in civil cases has advised against such instructions: “The committee recommends that no ‘one witness against a number’ instruction be given.” Illinois Pattern Jury Instructions, Civil,: No. 4.06 (2000) (hereinafter IPI Civil (2000)). The committee, in its notes to the recommendation against giving such instructions, commented, “The Illinois Supreme Court has held that it is for the jury to determine to what extent each witness is credible, and that it is error to give an instruction on that subject so worded that under the circumstances of the case the jury might readily infer the court believed the witnesses for one side to be more credible than the witnesses for the other side. Walsh v. Chicago Rys. Co., 294 Ill. 586, 595 (1920).” IPI Civil (2000) No. 4.06, Comment. Though we are mindful of the foregoing, we do not agree with the Langes’ assertion that the committee’s recommendation and comments establish that the trial court’s admonition in the instant case was reversible error.

Pattern instructions are presumed to be accurate statements of Illinois law, and the jury is to be instructed using an approved pattern form if the trial court determines that it is applicable to the circumstances of the case. Luye v. Schopper, 348 Ill. App. 3d 767, 773 (2004). But pattern instructions are not themselves law. Our supreme court has held that they “are not exempt from challenge.” Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). “There has not been any advance approval of the IPI by this court. An instruction is approved or rejected only after it has been judicially questioned and considered.” Powers, 91 Ill. 2d at 385.

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Bluebook (online)
855 N.E.2d 162, 305 Ill. Dec. 271, 367 Ill. App. 3d 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lange-v-freund-illappct-2006.