2024 IL App (1st) 221622-U No. 1-22-1622 Order filed May 24, 2024 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ) ARIANA WILLIAMS and BRANDON STEELS, ) Individually, and as mother and father of ) JARRON STEELS, a minor, ) ) Appeal from the Plaintiffs-Appellants, ) Circuit Court of ) Cook County. v. ) ) No. 2017 L 8130 JOSEPH THOMAS, M.D., ) ) Honorable Defendant-Appellee. ) James Varga, ) Judge Presiding ) )
JUSTICE LYLE delivered the judgment of the court. Justices Mikva and Navarro concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s judgment where there was no abuse of discretion to admit defendant’s expert witness testimony and where jury instructions were proper. No. 1-22-1622
¶2 Plaintiffs-Appellants Jarron Steels and his parents, Ariana Williams and Brandon Steels,
filed a medical malpractice action against the delivering obstetrician, Defendant-Appellee, Dr.
Joseph Thomas, alleging Jarron suffered injuries proximately caused by Dr. Joseph Thomas during
delivery. The matter proceeded to jury trial. Plaintiffs now appeal the jury verdict finding in favor
of Dr. Thomas. For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 Dr. Thomas was the delivering obstetrician for the delivery of Ariana Williams and
Brandon Steels’s child, Jarron Steels. Complications arose during the delivery, interfering with the
baby’s exit from the birth canal. Dr. Thomas believed baby Jarron had shoulder dystocia; a
condition where after the baby’s head exited the birth canal, one of the baby’s shoulders was stuck
in the pubic symphysis. After Jarron was delivered, Jarron was diagnosed with a permanent
brachial plexus injury to his left arm and shoulder, a permanent injury to the nerve roots. Plaintiffs
brought suit against Dr. Thomas, alleging that he negligently assisted the baby through the canal
proximately causing Jarron’s injury. The matter proceeded to jury trial where the jury returned a
verdict for the defendant.
¶5 At trial, Dr. Thomas testified that he encountered Ms. Williams when she had progressed
in labor and was fully dilated. He stated that Jarron’s posterior (left) shoulder had been forced past
the sacral promontory, or the bump in the spine of the mother. According to Dr. Thomas, the force
of Ms. Williams’ contractions was insufficient to complete delivery at that time. He decided to use
a Kiwi vacuum, or a small handheld device, to assist Ms. Williams with her labor. As the baby’s
body did not deliver, Dr. Thomas determined that the anterior (right) shoulder was stuck against
Ms. Williams’s pubic bone.
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¶6 Believing this was a shoulder dystocia event, Dr. Thomas attempted the McRoberts
maneuver and suprapubic pressure to release the baby from the mother’s pubic bone. To utilize
the McRoberts maneuver, Dr. Thomas, with the help of nurses, pulled the mother’s legs back
towards her shoulder to increase the space between her pubic bone and sacrum. Dr. Thomas
explained that suprapubic pressure occurs when the nurse uses her hand to put pressure on the
pubic bone to release the baby’s shoulder. He stated that the nurse pushed down on the bone to
push the baby’s shoulder underneath the public bone. He then explained the corkscrew maneuver,
stating that the baby is manually rotated to deliver the posterior shoulder.
¶7 Dr. Thomas stated that after the head was delivered but before the corkscrew maneuver
was attempted, he did not move the baby’s head right ear to right shoulder. He explained that he
would never do so for multiple reasons. According to Dr. Thomas, the first reason is that lateral
flexing on the head would occur, which he stated he does not do. The second is that pushing the
head up would defeat the purpose of using suprapubic pressure and the McRoberts maneuver to
release the shoulder from the mother’s pubic bone.
¶8 According to Dr. Thomas, there was no finding that during delivery, the left posterior
shoulder was trapped by any of the bony structures. When asked whether he had an opinion as to
what caused Jarron’s brachial plexus injury, he stated that he didn’t have one and that “no one
knows” what caused the injury. He stated that his conduct during the delivery complied with the
standard of care.
¶9 Dr. Thomas testified that, based on his knowledge and experience, if the posterior shoulder
becomes impacted on the sacral promontory, the head of the baby is not outside of the mother at
that time. He stated that impact on the sacral promontory point could be a cause for an injury to
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the posterior shoulder. He agreed that an obstetrician cannot see a baby’s shoulder stuck in the
sacral promontory, but medical literature has documented cases of the event occurring.
¶ 10 Dr. Richard Luciani testified as Plaintiffs’ obstetrician-gynecologist expert. Based on his
review of the medical record, Dr. Luciani concluded that Dr. Thomas deviated from the accepted
standard of obstetrical care. He stated that a permanent brachial plexus injury could not have been
caused by the natural forces of labor. He described the maternal forces of labor, using figures and
models, and concluded that such forces would not cause Jarron’s injury. Specifically, he stated Dr.
Thomas utilized excessive lateral traction during the delivery, leading to permanent brachial plexus
injury in multiple nerve roots of Jaron’s left shoulder. He testified that it is impossible for maternal
forces of labor to cause this injury. He concluded that the only mechanism of injury could only be
from excessive traction. He denied that the impaction of the posterior shoulder on the sacral
promontory can cause shoulder dystocia.
¶ 11 On cross-examination, Dr. Luciani agreed that there was no documented record that Dr.
Thomas applied excessive lateral traction during the course of the delivery. However, he stated
that the brachial plexus injury was self-evidence that Dr. Thomas used excessive upward traction.
In his opinion, absent a tumor, a “brachial plexus injury that occurs is the result of excessive lateral
traction by the delivering physician.” He admitted to not contributing to the literature in this field
but stated that he had read almost every piece of literature available.
¶ 12 Dr. Daniel Adler, Plaintiffs’ pediatric neurologist expert, testified that he believed that the
material forces of labor could never create the injury suffered by Jarron. He stated that “it’s never
been reported, there’s no medical literature, no one has written a paper saying this is possible. I’ve
never personally seen it, and I would say in this particular case it could not possibly be the cause.”
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He went on to say that the “injury is sufficient to prove” that excessive lateral traction was used.
Dr. Adler concluded that “the head must have moved after the delivery in a way that was lateral
so that the right ear moved towards the right shoulder. Otherwise, the injury would have never
occurred.”
¶ 13 On cross examination, Dr. Adler agreed that there was no documented evidence in the
hospital record or statements by individuals who witnessed the delivery that Dr. Thomas moved
the head upward during the delivery. Dr. Adler restated that the injury sustained by Jarron is
evidence that his head was moved during delivery. He was “not aware” of medical literature that
contained case reports of permanent brachial plexus injury without application of traction.
¶ 14 Defense expert Dr. Steven Clark testified that he performed research and studied the
pathophysiology of brachial plexus injuries after he encountered a case where the posterior
shoulder was injured. Plaintiffs objected, stating that Dr. Clark’s statement goes into his personal
practice. Defense replied that the statement went to his background and training, which the trial
judge agreed and overruled Plaintiffs objection.
¶ 15 Dr. Clark went on to explain that “several decades ago, it was thought that the only way a
baby got a brachial plexus injury” was when a “doctor encounters shoulder dystocia, that it was
that pulling, that tugging, that would cause brachial plexus injury” and that was “the end of the
story.” In that case, Dr. Clark explained that the “baby was delivered by the posterior arm, not the
arm stuck under the pubic bone, was the one that turned out to have the injury. No amount of
pulling and tugging that a doctor could do could possibly injure the posterior arm in a baby with a
shoulder dystocia.”
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¶ 16 Since that case, Dr. Clark stated that the medical literature has expanded and has now
described four ways for a baby’s brachial plexus to be injured. He explained that “most of these
injuries have nothing to do with what the doctor does” while trying to relieve the shoulder dystocia.
He went on to describe the four ways brachial plexus injuries could occur. He stated that “any time
I have twisting or turning of my head in one direction, I’m going to be stretching the brachial
plexus in the other direction.”
¶ 17 Dr. Clark then explained that the first possible cause of a brachial plexus injury is in utero
crowding. The second is cardinal movements of labor. Referencing his prior testimony, Dr. Clark
explained that “if there is a disproportion between the shoulders and the head of the baby and the
pelvis of a mother***the brachial plexus may be stretched unduly or stretched abnormally, and
brachial plexus injury can occur that way.” According to Dr. Clark, this is a known cause because
“half of all babies with brachial plexus didn’t have a shoulder dystocia” which indicates that
stretching occurred while the baby was naturally moving down the birth canal.
¶ 18 The third possible cause could be lifesaving maneuvers, such as the McRoberts and the
corkscrew, utilized by the doctor. Dr. Clark explained some babies do not tolerate such maneuvers,
which is called “biologic variability.” He stated that the brachial plexus injury may occur while
the doctor is trying to save the baby’s brain function. The fourth possible cause of injury occurs if
the doctor “pulls downward too hard” and stretches the brachial plexus. At this point, Plaintiffs’
counsel objected, arguing that Dr. Clark was supposed to testify about the medical literature, but
stated defense counsel was “starting to relate this to this particular case, and that is not what this
expert is here to testify to.” Following a conference out of the presence of the jury, the court
sustained the objection.
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¶ 19 Defense counsel then asked Dr. Clark about the significance of the findings of an article.
Plaintiffs’ counsel objected, stating that it was an “inappropriate use of literature on direct
examination, to quote the findings.” The trial court overruled the objection, stating that Dr. Clark
was permitted to explain the significance of the findings to him. Dr. Clark stated that as of 1997,
there was medical literature published in a peer-reviewed journal that showed you could have a
permanent brachial plexus injury in the left posterior shoulder absent any physical traction.
¶ 20 Defense counsel then showed Dr. Clark an article he published in 2020. Plaintiffs’ counsel
objected, arguing that it was post-event literature and that it could not be used. Defense counsel
argued the article was not being used for standard of care, but for causation. The trial court agreed
that the article could be used for causation, overruling Plaintiffs’ objection.
¶ 21 Defense expert Dr. Michael Ross then testified that there was no evidence that Dr. Thomas
performed excessive traction based on his review of the medical record. He explained that after
the delivery of the baby’s head and the right anterior shoulder gets caught on the pubic bone, there
is a shoulder dystocia. He then explained that when the posterior shoulder gets caught on the ledge
of the sacral promontory, it can cause the brachial plexus nerves in that arm to stretch. At this
point, the baby’s head would not have been delivered. In his opinion, before Dr. Thomas arrived
for the delivery process, the vacuum applied, and the delivery of the head, there was an impaction
on the left posterior shoulder on the ledge of the sacral promontory that resulted in the injury to
Jarron.
¶ 22 Dr. Ross explained that with the baby’s head delivered, there is no indication to the
obstetrician that there’s been a left posterior shoulder injury. He then stated that there are
recognized maneuvers to disengage a shoulder dystocia; the McRoberts maneuver, suprapubic
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pressure, and the corkscrew. Based on his reading of the materials presented in the case, Dr. Ross
did not see any lateral traction placed by Dr. Thomas during the delivery of Ms. Williams’s baby.
He testified that in order to have a traction induced injury, the doctor would have to pull up on the
baby’s neck to stretch the left side or move the head to baby’s right ear to right shoulder. According
to Dr. Ross, this is an anterior lateral traction. He stated that an upward lateral traction maneuver
would be counterintuitive to disimpact an anterior shoulder. Dr. Ross concluded that Dr. Thomas
applied the skill and care of a reasonably careful obstetrician during the delivery of Jarron and that
none of his actions contributed to Jarron’s injury.
¶ 23 On cross examination, Dr. Ross agreed that there was no evidence in the record that the
baby’s shoulder was caught on the sacral promontory. He also stated that he did not know
specifically the force of the mother’s contractions. He also agreed that there is “not a precise
number but a physiologic range” of force necessary to cause a brachial plexus injury. He testified
that in this case, there was no evidence that Jarron’s injury was the result of in utero crowding.
¶ 24 During the jury instruction conference, Plaintiffs objected to the removal of the first
sentence of the second paragraph of the Illinois Pattern Jury Instructions, Civil No. 15.01 (2022)
(hereinafter IPI Civil No. 15.01). Plaintiffs requested the following instruction:
“When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.
If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury. However, if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant.”
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The trial court stated that “I think it’s real confusing when you say someone else is not in the case.”
The court elected to give the instruction without the first sentence of the first paragraph. The trial
court also denied Plaintiff’s tendered instruction based on Illinois Pattern Jury Instructions, Civil
No. 30.21 (2022) (hereinafter IPI Civil No. 30.21) and the tendered emotional distress line item
for the Verdict A form.
¶ 25 The jury entered a verdict in favor of the Defendant. The circuit court denied Plaintiffs’
posttrial motion. Plaintiffs timely filed a notice of appeal.
¶ 26 ANAYLYSIS
¶ 27 We find that we have jurisdiction to consider the merits of this appeal pursuant to Illinois
Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303(a) (eff. July 1, 2017). On appeal, Plaintiffs
assert that (1) the circuit court improperly permitted the testimony of Dr. Clark, and (2) the circuit
court gave improper instructions to the jury. Based on the court’s errors, Plaintiffs argue the finding
of the jury was against the manifest weight of the evidence.
¶ 28 With respect to the admission of expert testimony, we review the trial court’s decisions on
motions in limine under an abuse of discretion standard. Maggi v. RAS Development, Inc., 2011
IL App (1st) 091955, ¶ 67. A trial court abuses its discretion only if it acts arbitrarily or if no
reasonable person would take the position adopted by the court. Id. This court does not substitute
its judgment for that of the trial court in assessing an abuse of discretion. Id. With respect to jury
instructions, we will disturb the trial court’s decision only when it clearly abused its discretion.
Shvartsman ex rel. Shvartsman v. Septran, Inc., 304 Ill. App. 3d 900, 902-903 (1999).
¶ 29 A. Dr. Clark’s Testimony
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¶ 30 Plaintiffs initially argue that certain articles and medical literature to which Dr. Clark
testified were not adequately disclosed under Supreme Court Rule 213(f)(3). Rule 213(f)(3)
defines a “controlled expert witness" as a person giving expert testimony who is the party’s
retained expert. Ill. S. Ct. R. 213(f)(3). The Rule provides that the party must identify the
following: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions
of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports
prepared by the witness about the case. Id.
¶ 31 The trial court addressed this issue in its ruling on Plaintiffs’ posttrial motion. The court
ruled that the articles relied upon by Dr. Clark were disclosed pursuant to Rule 213(f)(3) and during
deposition. On appeal, Plaintiffs simply stated that the disclosure rule was violated and did not
provide any specificity as to which medical literature testified to by Dr. Clark was undisclosed.
Nor did Plaintiffs provide accurate citation to the record to support this claim. Appellants’ failure
to provide a sufficient record to support their claim of error requires a presumption that the court’s
ruling was proper. See Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967,
971 (1997).
¶ 32 Alternatively, Plaintiffs argue that the articles and medical literature referenced by Dr.
Clark did not apply to this case. Specifically, Plaintiffs raise issues with Dr. Clark’s testimony
regarding cases of brachial plexus injuries resulting from causes other than excessive traction.
Plaintiffs also assert that Dr. Clark’s reference to medical literature was a mere summary, thus
improper, and that because the literature was unrelated to the facts of the case, it should have been
barred. Therefore, Plaintiffs argue, the claims by their expert witnesses would have been unrefuted
and a finding for Defendant is against the manifest weight of the evidence.
- 10 - No. 1-22-1622
¶ 33 However, we first address Defendant’s contention that Plaintiffs forfeited this issue
because they failed to make contemporaneous objections during Dr. Clark’s testimony. We find
that Plaintiffs preserved this issue by raising it in a motion in limine and in their posttrial motion.
See People v. Hudson, 157 Ill. 2d 401, 434 (1993). Accordingly, we move to the merits of
Plaintiff’s arguments.
¶ 34 In a medical malpractice action, a plaintiff must prove: (1) the proper standard of care by
which to measure the defendant’s conduct; (2) a negligent breach of the standard of care; and (3)
the resulting injury was proximately caused by the defendant’s lack of skill or care. Bergman v.
Kelsey, 375 Ill. App. 3d 612, 621 (1st Dist. 2007). Issues involving proximate cause are fact
specific and are for the jury’s determination. Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 60.
Proximate cause must be established by expert testimony to a reasonable degree of medical
certainty. Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 413 (2000). The
weight, sufficiency and credibility assessed to medical expert testimony is within the province of
the jury, as is, ultimately, the resolution of evidentiary conflicts with respect to the factual question
of proximate cause. Cummings v. Jha, 394 Ill. App. 3d 439, 454 (2009) (quoting Burgman v.
Kelsey, 375 Ill. App. 3d. 612, 625-26 (1st Dist. 2007).
¶ 35 Plaintiffs argue that Dr. Clark’s reference to in utero crowding as a cause of brachial plexus
injuries misled the jury, as there was no evidence that in utero crowding occurred in Jarron’s case.
Plaintiffs point to Yanello v. Park Family Dental, 2017 IL App (3d) 140926, to support this notion.
In Yanello, the expert witness testified that rheumatoid arthritis and osteopenia caused or
contributed to the failure of the plaintiff’s dental implants. Id. at ¶ 44. However, there was no
evidence that the plaintiff had been diagnosed with rheumatoid arthritis or osteopenia. Id. at ¶ 45.
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The expert failed to present a sufficient foundation establishing the reliability of his opinion, thus
admitting the testimony was an abuse of discretion. Id.
¶ 36 However, Yanello is not analogous to the case at bar. Here, Dr. Clark did not offer an
opinion that in utero crowding was the cause of Jarron’s brachial plexus injury, nor did he give
any opinion on the cause of the Jarron’s injury. Additionally, Defendant’s expert witness Dr. Ross
agreed that the injury was not caused by in utero crowding. Dr. Clark’s discussion of in utero
crowding was appropriate to rebut the Plaintiffs’ experts’ insistence that no other cause of brachial
plexus injuries, absent excessive traction, exists.
¶ 37 We also find Plaintiffs’ arguments against the admissibility of Dr. Clark’s references to
other possible causes of a brachial plexus injury without merit. Opinion testimony of an expert is
admissible if the expert is qualified by knowledge, skill, experience, training, or education in a
field that has “at least a modicum of reliability” and the testimony would assist the jury in
understanding the evidence. Turner v. Williams, 326 Ill. App. 3d 541, 552 (2d Dist. 2001).
Evidence offered to explain, contradict, or disprove evidence offered by another party is proper
rebuttal evidence. Gabrenas v. R.D. Werner Co., 116 Ill. App. 3d 276, 283-84 (1st Dist. 1983).
¶ 38 Dr. Clark’s testimony regarding the possible causes of brachial plexus injuries was
admissible because it was offered to assist the jury’s understanding of the medical record and to
rebut the opposing party’s witnesses. Plaintiffs’ expert witnesses testified that they had extensive
knowledge of brachial plexus injuries based on their education and review of medical literature.
Both experts stated that they were not aware of any medical literature that provided cases of
brachial plexus injuries resulting from causes other than excessive traction. Dr. Clark’s testimony
simply rebutted that testimony by providing his own basis of knowledge to the contrary.
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¶ 39 We also disagree with Plaintiffs’ evaluation of the evidence and their contention that their
witnesses’ opinions were unrefuted. Plaintiffs’ expert witnesses both testified that there was no
evidence in the medical record that Dr. Thomas used excessive traction. However, the witnesses
stated there could be no other cause of Jarron’s injury based on their knowledge and on the medical
literature they were aware of. Dr. Clark then testified that based on his own research, the notion
that there were no other causes of brachial plexus injuries other than excessive traction was
outdated. This conflicting testimony was sufficient to raise a question of fact to be decided by the
jury and this court will not substitute its judgment for that of the jury and reweigh the credibility
of the witnesses. Bergman, 375 Ill. App. 3d at 622-23.
¶ 40 Next, Plaintiffs contend Dr. Clark improperly summarized the findings of medical
literature. In response, Defendant claims Dr. Clark did not summarize the literature, but simply
discussed his own personal knowledge based on research he conducted as a contributing author to
the literature.
¶ 41 If specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise. Ill. R. Evid. Rule 702 (eff.
Jan. 1, 2011). For expert testimony to be admissible, an adequate foundation must be laid
establishing that the information that the expert bases the opinion upon is reliable. Taylor v. County
of Cook, 2011 IL App (1st) 093085, ¶ 32.
¶ 42 The purpose of Dr. Clark’s testimony was to refute Plaintiffs’ expert witnesses’ testimony
that there could be no other cause to Jarron’s brachial plexus injury than excessive traction based
on medical literature. Dr. Clark testified, that based on his research, there were multiple causes of
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such injuries. Dr. Clark then explained how his medical research led him to that conclusion by
referencing those articles. The trial court properly admitted the testimony not for the truth of the
matter, but to lay a proper foundation of Dr. Clark’s specialized knowledge. Id.
¶ 43 Plaintiffs then argue that Dr. Clark’s reference to articles post-occurrence were
inadmissible. Generally, standards that were not in effect at the time of treatment are irrelevant to
establishing the standard of care governing the defendant’s treatment. Castillo v. Stevens, 2019 IL
App (1st) 172958, ¶ 54. However, post-occurrence articles can be used for other purposes.
Granberry by Granberry v. Carbondale Clinic, S.C., 285 Ill. App. 3d 54, 65 (5th Dist. 1996)
(holding that post-event literature was admissible for the purpose of showing diagnostic
capabilities of equipment, not to show a deviation from the standard of care). Here, the 2020 article
referenced by Dr. Clark was admitted for the purpose of refuting Plaintiffs’ expert witness
testimony, not as proof that Dr. Thomas exercised an appropriate standard of care for the delivery
of Jarron in 2015. As such, Plaintiffs’ argument is unavailing.
¶ 44 We also find Plaintiffs’ assertion that Dr. Clark’s testimony was unrelated to the issues at
trial incorrect. Evidence is relevant if it has any tendency to make the existence of any fact that is
of consequence to the action more or less probable than it would be without the evidence. Ill. R.
Evid. Rule 401 (eff. Jan. 1, 2011). As previously discussed, Dr. Clark provided the jury with
credible, alternative information to explain the medical intricacies of obstetrics and brachial plexus
injuries. His testimony was proper rebuttal evidence to Plaintiffs’ expert witnesses’ assertion that
medical literature points solely to excessive traction as the cause of brachial plexus injuries. See
Gabrenas, 116 Ill. App. 3d at 283-84. Thus, we find no abuse of discretion as to the admission of
Dr. Clark’s testimony.
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¶ 45 B. Jury Instructions
¶ 46 Plaintiffs assert that the trial court gave improper jury instructions. Specifically, Plaintiffs
argue that (1) the entirety of paragraph two of IPI Civil No. 15.01 should have been given; (2) IPI
Civil No. 30.21 should have been given; and (3) a separate line item for emotional distress in
Verdict Form A was improperly refused.
¶ 47 Jury instructions communicate the correct principles of law to a jury based on the evidence
presented to allow it to reach a conclusion based on the law and evidence. People v. Nash, 2012
IL App (1st) 093233, ¶ 26. In its discretion, a trial court may tender instructions which are non-IPI
if those instructions contain “nonargumentative statements of the law.” Id. When reviewing for an
abuse of discretion, courts determine whether, when “taken as a whole, the instructions fairly,
fully, and comprehensively apprised the jury of the relevant legal principles.” Schultz v. Northeast
Illinois Regulation Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002). “A reviewing court
ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the
jury and resulted in prejudice to the appellant.” Id. at 274.
¶ 48 Plaintiffs claim the trial court erred in refusing to give the first sentence of the second
paragraph of IPI Civil No. 15.01. Plaintiffs assert that the second sentence “can never be given
without sentence one, because sentence two is peremptory.” They argue that the first sentence
should be given where there is evidence of more than one proximate cause of the injury at issue.
¶ 49 A trial court is required to use an Illinois Pattern Jury Instruction when it is applicable in a
civil case after giving due consideration to the facts and the prevailing law, unless the court
determines that the instruction does not accurately state the law Id. at 273. In that case, the court
may instruct the jury pursuant to a nonpattern instruction. Id. When assessing the adequacy of the
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instructions, we consider the totality of the instructions provided. People v. Martinez, 342 Ill. App
3d 849, 858 (1st Dist. 2003).
¶ 50 The “Notes on Use” section provides guidance on the second paragraph for IPI Civil No.
15.01. It states that the second paragraph “should only be used where there is evidence tending to
show that the conduct of the defendant was not the proximate cause of the occurrence and the
conduct of third persons or outside instrumentalities was the proximate cause of the occurrence.”
IPI Civil (2021) No. 15.01 (Notes on Use, revised October 2021). The Committee Comments also
address the correct use of the second paragraph, stating that the paragraph simplifies the proximate
cause theory by “arguing that the negligence of another person or entity, not a party to the lawsuit
was the only proximate cause of plaintiff’s injuries.” See IPI Civil (2021) 15.01 (Comments,
revised October 2021) (citing cases). Additionally, the Comments provide that the second
paragraph instructs the jury that “[w]here a person is guilty of the negligence charged against him,
it is no defense that some other person, or thing, contributed to bring about the results for which
the damages are claimed.” Id.
¶ 51 In the case at bar, the following instructions were given:
“When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.
However, if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant.”
Plaintiffs argue that the following sentence should have also been included: “If you decide that the
defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it
is not a defense that something or someone else may also have been a cause of the injury.”
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¶ 52 We disagree that the trial court erred in refusing to include the sentence to instruct the jury.
The issue before the jury was whether Dr. Thomas was the proximate cause of Jarron’s injury.
The evidence presented to the jury did not include any indication that there was another party or
entity responsible for Jarron’s injury. As such, the jury would have been confused if it received
instructions to make determinations on evidence that was not presented. We also disagree with
Plaintiffs’ contention that the second sentence may “never” be read without the first. It is in the
trial court’s discretion to give instructions that align with the law, even if they are nonpattern
instructions. See Nash, 2012 IL App (1st) 093233, ¶ 26. Therefore, we find no abuse of discretion.
¶ 53 Plaintiffs also assert that the trial court erred in refusing to give the jury the IPI Civil No.
30.21 instruction. Plaintiffs insist that because Dr. Clark’s testimony regarding in utero crowding
as a possible cause of brachial plexus injuries was admitted, the jury should have been given
instructions that contemplated in utero crowding might be considered as a pre-existing condition.
¶ 54 The IPI Civil No. 30.21 instructions read as follows:
“If you decide for the plaintiff on the question of liability, you may not deny plaintiff’s right to damages resulting from this occurrence because any injury resulted from [an aggravation of a pre-existing condition] [or] [a pre-existing condition which rendered the plaintiff more susceptible to injury].” IPI Civil (2022) No. 30.21.
This instruction requires careful consideration of whether there was evidence of a pre-existing
condition in the case. Beard v. Barron, 379 Ill. App. 3d 1, 19-20 (1st Dist. 2008).
¶ 55 Plaintiffs’ assertion is unavailing. There was no evidence presented by either party that
Jarron suffered from in utero crowding. Dr. Clark presented in utero crowding as an alternative
cause of brachial plexus injuries to rebut the testimony by Plaintiffs’ experts that only excessive
traction by the obstetrician could cause Jarron’s injury. Dr. Clark did not testify that in utero
crowding caused Jarron’s injury. Additionally, Dr. Ross agreed with Plaintiffs’ counsel that Jarron
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was not injured because of in utero crowding. As such, we find no reversible error in the trial
court’s refusal to give the instruction.
¶ 56 Plaintiffs’ remaining claim of error is the trial court’s refusal to include emotional distress
as a line item on Verdict Form A. Because we have found no error in the court’s evidentiary
decisions and instructions with respect to proximate cause, we do not reach this issue as the jury
did not find Defendant liable. Accordingly, we affirm the judgment of the circuit court.
¶ 57 CONCLUSION
¶ 58 For the reasons explained above, we affirm the judgement of the circuit court.
¶ 59 Affirmed.
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