Pretzel & Stouffer

Jury Verdict for Doctor Upheld with Barring of Handwriting Expert and Contributory Negligence Instructions Affirmed

The Appellate Court of Illinois has affirmed a verdict for a doctor represented by Pretzel & Stouffer, finding that the trial court properly barred an expert witness for the plaintiff who would have given inflammatory opinion testimony about documentary evidence, and properly rejected the plaintiff’s proposed jury instruction on contributory negligence.

Scott L. Howie of Pretzel & Stouffer represented the doctor in the appeal, defending the verdict obtained at trial by Pretzel’s Alan J. Schumacher and Suzanne M. Crowley.

In an opinion that repeatedly cited the arguments made in the defense brief, the appellate court held that the plaintiff could not establish that his expert witness, a forensic document examiner, could support the plaintiff’s insinuation that the doctor had withheld part of his medical files. Observing that the expert could not connect the so-called “latent images” on the chart to either the patient or the doctor, the court concluded that the expert’s testimony would have had very little probative value, if any, and that any such value would have been greatly outweighed by the prejudice of suggesting document tampering.

The appellate court also rejected plaintiff’s argument that the trial court should have instructed the jury in contributory negligence and given it a verdict form allowing it to reduce the verdict accordingly. The court found that the plaintiff had failed to include his proposed instructions in the record, as required, but even if he had, the court held, he also failed to identify any prejudice from the trial court’s refusal to give the instructions. The court rejected the plaintiff’s contention that the instructions on contributory negligence would have enabled the jury to reach a compromise verdict by finding for the plaintiff but reducing his damages. As the court observed, even with instructions on the subject, the jury would not have considered contributory negligence unless it had first found the doctor liable—and since it found that he was not, the jury would not have reached that instruction at all. Therefore, the trial court’s refusal to give the instructions and verdict form had no impact on the trial and did not prejudice the plaintiff.

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