Illinois Supreme Court Reverses Judgment and Remands Case for New Trial in Birth Injury Lawsuit Based on Motion in Limine

This Supreme Court case comes from an appeal twice to the appellate court and originally from the Circuit Court of Adams County, Ill. The issue was “whether the ruling of the appellate court, 2016 IL App (4th) 150843, reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The first appellate court decision answered this question in the affirmative. The Illinois Supreme Court granted motions by the Illinois Association of Defense Trial Counsel to file an amicus curiae brief in support of defendant and the Illinois Trial Lawyers’ Association (ITLA) to file an amicus curiae brief in support of plaintiff’s position.

Because the resolution of the appeal concerned a narrow-certified question, the Illinois Supreme Court summarized the facts pertinent to making its decision.

In August 2015, plaintiffs Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim, who was born on June 17, 2005, filed a fourth amended medical malpractice claim against the defendant, Gina Dietrich, D.O., alleging two claims: (1) Defendant failed to obtain Teri’s informed consent to perform a natural birth despite possible risks associated with Collin’s large size, and (2) defendant negligently delivered Collin, causing him injuries. The allegations supporting the informed consent claim are found in paragraph (a) through (j) of plaintiffs’ fourth amended complaint, while sub-paragraphs (k) and (l) concern the allegations related to professional negligence during the delivery of the child.

Among other things, the plaintiffs’ complaint alleged that prior to birth, the defendant doctor chose not to diagnose Collin with fetal macrosomia — enlarged fetus — because the doctor decided not to recognize the significance of Teri’s fundal heights, failed to assess the fetal weight, and decided not to order an ultrasound prior to inducing labor. As a result, the plaintiffs claim that the defendant doctor chose not to inform Teri of the risks and benefits of vaginal birth as opposed to Caesarean section, failed to inform her of the high risk of shoulder dystocia and brachial plexus injury in the event of a vaginal birth, and failed to offer Teri the option of delivering Collin by Caesarean section because of Collin’s large size.

During Collin’s June 17, 2005 natural delivery, Collin suffered shoulder dystocia, which is an obstructed labor whereby, after the delivery of the head, one or both shoulders of the infant cannot pass or requires significant manipulation. As a result, Collins suffered a broken clavicle and extensive nerve damage to his right shoulder, arm and hand.

In September 2015, the case went to a jury trial. Following the presentation of the plaintiffs’ case, defendant moved for a partial directed verdict on the issue of informed consent, arguing that the appellate court’s decision in St. Gemme v. Tomlin, 118 Ill.App.3d 766 (4th Dist. 1983), requires plaintiffs to present expert testimony that a reasonable patient would have pursued a different form of treatment. Defendant argued that plaintiffs failed to proffer an expert to satisfy St. Gemme’s holding. The trial judge agreed, granting defendant’s motion for direct verdict on the issue of informed consent. Thereafter, following additional evidence and argument, the jury returned a verdict in defendant’s favor and against plaintiffs on their remaining claims of professional negligence.

On Nov. 7, 2016, the Illinois Appellate Court issued its opinion in Crim I, reversing the circuit court’s judgment and remanding the case to the circuit court. 2016 IL App (4th) 150853, ¶ 51. The appellate court limited its decision to an analysis of the partial directed verdict on the issue of informed consent, stating it need not address the subsequent proceedings following the directed verdict “because it is not pertinent to the resolution of this case.” Id. ¶ 29. The appellate court’s mandate stated, “the order on appeal from the circuit court be REVERSED and the cause be remanded to the Circuit Court for the Eighth Judicial Circuit Adams County, for such other proceedings as required by order of this court.”

When the case was sent back to the trial court, the parties disagreed on what issues and facts could be retried. Defendant filed a motion in limine to exclude the presentation of any evidence relating to plaintiffs’ negligent delivery claim, thereby requesting the new trial be conducted solely on the issue of informed consent. Defendant argued that the appellate court’s opinion addressed only the informed consent claim and, therefore, the only issue and facts that should be retried are those related to plaintiffs’ informed consent claim. Defendant further noted that plaintiffs forfeited their right to have a new trial on their professional negligence claim because they failed to file a post-trial motion as required by Section 2-1202 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1202. Therefore, according to the defendant, the circuit court was barred from relitigating the jury’s verdict.

The circuit court following a hearing denied the defendant’s motion in limine. The court denied the motion but invited the parties to propose a certified question pursuant to Rule 308 that sent the case to the Illinois Supreme Court.

The issue to the Supreme Court was whether the issues to be relitigated was the intention in the opinion of the appellate court. The Illinois Supreme Court examined the certified question seeking a legal analysis regarding whether Crim I’s holding “requires a new trial de novo.” The certified question is no different than a certified question involving statutory construction and requests no more of this court, or the appellate court below, than what reviewing courts are regularly tasked to perform: Resolve legal questions regarding the effects a prior decision has on a pending case. See, e.g., Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6 (answering a certified question concerning the legal effects a recent U.S. Supreme Court decision has on Illinois law and the pending case). There was a Crim II, a second appellate court decision, which was because Crim I issued a general remand without specific instructions, a new trial should be held on all issues, including the issue of professional negligence. Crim II, 2018 IL App (4th) 170864-U, ¶ 43. The Crim II court found that the “decisive” wording of Crim I’s opinion and mandate implied that the entire judgment was abrogated and the circuit court was to proceed de novo. Id.

In this case, the plaintiffs chose not to file a post-trial motion following the directed verdict. The plaintiffs argued on appeal at the appellate level and in the Supreme Court that their failure to file a post-trial motion was premised on an exception to the Illinois Code of Civil Procedures § 2-1202 on post-trial motions required following a jury’s verdict.

Based on the Illinois Supreme Court’s reasoning and analysis, the court found that neither exception to Section 2-1202 applied. The plain language of the statute and case law interpreting Section 2-1202, requires a litigant to file a post-trial motion in order to challenge the jury’s verdict even when the circuit court enters a partial directed verdict as to other issues in the case. The failure by plaintiff to file a post-trial motion challenging the jury’s verdict deprived the circuit court of an opportunity to correct any trial errors involving the jury’s verdict and undermined any notion of fairness to defendant on appeal. Moreover, as a result, plaintiffs failed to reserve any challenge to the jury’s verdict for appellate review. Therefore, it is no surprise that the appellate court in Crim I never discussed forfeiture rules in its opinion. Procedural methods required for preserving questions for review were clearly not complied with by the failure to file a proper post-trial motion challenging the jury’s verdict.

Accordingly, the appellate court in Crim II erred by answering the certified question in the affirmative. Further, based on our finding, the Illinois Supreme Court held that the circuit court erred in denying defendant’s motion in limine, which sought to limit the new trial to a trial on plaintiffs’ informed consent claim.

For the foregoing reasons, the Supreme Court answered the certified question in the negative, and it reversed the judgment of the appellate court. The Supreme Court also reversed the circuit court’s order denying the defendant’s motion in limine and remanded the matter to the circuit court in order to conduct a new trial on the issue of informed consent, only.

There was a special concurring opinion by Chief Justice Anne M. Burke. There was also a dissenting opinion by Justice Kilbride who stated that in his view, the majority errs in answering the certified question. He stated that he believed the petition for leave to appeal was improvidently granted and this was not a proper appeal under Illinois Supreme Court Rule 308. Justice’s dissent disagreed with the majority’s decision on the merits because it was inconsistent with this court’s rules and case law and mistakenly allows the legislature to re-restrict the authority of reviewing courts to grant relief on forfeited claims.

Crim v. Dietrich, 2020 IL 124318 (April 2, 2020).

Kreisman Law Offices has been handling birth trauma injury lawsuits, brachial plexus injury lawsuits, Illinois and federal court appeals, catastrophic injury lawsuits, brain injury lawsuits, medical malpractice cases, obstetrics negligence cases and jury trials for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Lombard, Palatine, Palos Hills, Deerfield, Wheeling, Vernon Hills, Lake Zurich, Mount Prospect, Calumet City, Crestwood, Chicago (East Garfield Park, Washington Park, Jefferson Park, Irving Park, Rogers Park, Bucktown, Ukrainian Village, Andersonville, Bronzeville, Wrigleyville), Rosemont, Riverdale, North Riverside and Lansing, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.