{ "id": 3629460, "name": "TONI THORNTON, Indiv. and as Special Adm'r of the Estate of Jason Anthony Ebner, Deceased, Appellee, v. FRANCISCO J. GARCINI, M.D., Appellant", "name_abbreviation": "Thornton v. Garcini", "decision_date": "2009-10-29", "docket_number": "No. 107028", "first_page": "100", "last_page": "117", "citations": [ { "type": "official", "cite": "237 Ill. 2d 100" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "364 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262615 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0612-01" ] }, { "cite": "382 Ill. App. 3d. 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276337 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0813-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "188 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536152 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "132" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0102-01" ] }, { "cite": "181 Ill. 2d 512", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821420 ], "year": 1998, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0512-01" ] }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "453" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "143 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591864 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "311-12" }, { "page": "311-12" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0296-01" ] }, { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "297 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910221 ], "year": 1998, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0694-01" ] }, { "cite": "324 Ill. App. 3d 114", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256282 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "126" }, { "page": "126" }, { "page": "127" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0114-01" ] }, { "cite": "228 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706686 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0181-01" ] }, { "cite": "204 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609708 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "137" }, { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0127-01" ] }, { "cite": "232 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619454 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/ill-2d/232/0560-01" ] }, { "cite": "192 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453256 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "48-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0047-01" ] }, { "cite": "907 F. Supp. 1193", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7833370 ], "year": 1995, "pin_cites": [ { "page": "1198" } ], "opinion_index": 0, "case_paths": [ "/f-supp/907/1193-01" ] }, { "cite": "237 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162483 ], "year": 1992, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0606-01" ] }, { "cite": "208 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463034 ], "year": 2003, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0259-01" ] }, { "cite": "166 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198922 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "368" }, { "page": "368" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0337-01" ] }, { "cite": "161 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783180 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/161/0357-01" ] } ], "analysis": { "cardinality": 1018, "char_count": 27728, "ocr_confidence": 0.83, "pagerank": { "raw": 1.250252089477467e-07, "percentile": 0.6099301542290689 }, "sha256": "55069b25da8092217416e80981d827eca0521f7d0f24f1fddf0960e1051b3d6a", "simhash": "1:cbc638c0c3524124", "word_count": 4424 }, "last_updated": "2023-07-14T20:19:30.118365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TONI THORNTON, Indiv. and as Special Adm\u2019r of the Estate of Jason Anthony Ebner, Deceased, Appellee, v. FRANCISCO J. GARCINI, M.D., Appellant." ], "opinions": [ { "text": "JUSTICE KILBRIDE\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.\nOPINION\nThe primary issue we address in this appeal is whether expert testimony is required to prove negligent infliction of emotional distress. Defendant, Dr. Francisco Garcini, appeals from the second trial of a medical negligence claim. In that action, plaintiff, Toni Thornton, individually and as special administrator of the estate of her deceased infant son, sought damages for her son\u2019s death and compensation for negligent infliction of emotional distress. At the first trial, the jury found in favor of defendant. Plaintiff appealed, and the appellate court granted plaintiff a new trial. Thornton v. Garcini, 364 Ill. App. 3d 612 (2006).\nOn retrial, the jury found in favor of defendant on plaintiff\u2019s wrongful-death and survival claims, but in favor of plaintiff on her negligent infliction of emotional distress claim. The appellate court affirmed. 382 Ill. App. 3d. 813.\nWe allowed defendant\u2019s petition for leave to appeal. 210 Ill. 2d R. 315. We now affirm the judgment of the appellate court.\nI. BACKGROUND\nOn August 28, 2000, plaintiffs son, Jason Anthony, was born prematurely in a breech position, at an approximate gestational age of 24 weeks. During childbirth, Jason\u2019s head became stuck in his mother\u2019s vagina, with the rest of his body outside the vagina. The infant died when the nurses at the hospital were unable to complete the delivery. Defendant arrived at the hospital an hour and 10 minutes later.\nPlaintiff, as administrator of Jason\u2019s estate, brought an action for medical negligence against defendant, Silver Cross Hospital, and individual nurses. Plaintiff\u2019s suit contained wrongful-death and survival claims. Her suit also included an individual claim for intentional infliction of emotional distress, claiming she suffered emotional distress from the delivery.\nAt the first trial, the jury found in favor of defendant and the nurses on the wrongful-death and survival claims and the intentional infliction of emotional distress claim. On the intentional infliction of emotional distress claim against the hospital, the jury found for plaintiff and awarded her $175,000. Plaintiff filed posttrial motions against all the defendants. During the pendency of these motions, the hospital and nurses entered into a release of claims and satisfaction of judgment upon payment of $175,000. The trial court later denied the posttrial motion against defendant.\nPlaintiff appealed only the judgment in favor of defendant. The appellate court reversed and granted plaintiff a new trial. Thornton, 364 Ill. App. 3d 612.\nAt the second trial, defendant testified he was plaintiffs obstetrician. At 6:35 a.m. on the day of delivery, defendant was called at his home and advised that plaintiff was having contractions. He gave certain orders. The infant partially delivered in a breech position 35 minutes later, at 7:10 a.m. Nurses were present for the delivery, but no physician was present. The infant became entrapped at the neck during the delivery. Defendant instructed the nurses not to deliver the infant unless it could be done easily, because of a risk of decapitation. The nurses were unable to deliver the infant, and he died before defendant left his home. Plaintiff waited over an hour, with the deceased infant partially delivered, until defendant arrived to complete the delivery.\nPlaintiff testified about her emotional state from laying in a hospital bed for over an hour with the infant partially delivered. Plaintiff stated she was depressed, and could not eat, or sleep. She could only think about laying there for an hour and 10 minutes, and there was nothing she could do but \u201csit there like that with my baby.\u201d She further testified that she has these thoughts \u201c[a]ll the time\u201d and she has had thoughts of suicide because \u201c[i]t was so horrible\u201d and \u201cI\u2019m always reminded of that hour and ten minutes that I sat there with him.\u201d\nThe infant\u2019s father and plaintiff\u2019s mother testified to the effect the infant\u2019s death and the circumstances of the delivery had on plaintiff. No expert witness testimony was presented on plaintiff\u2019s claim for emotional distress.\nPlaintiff amended her complaint to conform to the proofs and submitted a negligent infliction of emotional distress claim to the jury. She only submitted her negligent infliction of emotional distress claim to the jury. Plaintiff did not submit her intentional infliction of emotional distress claim to the jury.\nThe jury found in favor of defendant on the wrongful-death and survival claims and for plaintiff on the negligent infliction of emotional distress claim. The jury award plaintiff $700,000 in damages.\nDefendant filed a posttrial motion seeking a judgment notwithstanding the verdict, arguing that plaintiff failed to prove negligent infliction of emotional distress with expert testimony. Defendant\u2019s motion also sought a judgment notwithstanding the verdict based on the single recovery rule, and a setoff of the settlement paid by the hospital. The trial court denied defendant\u2019s posttrial motion. The appellate court affirmed. 382 Ill. App. 3d 813.\nII. ANALYSIS\nA. Judgment Notwithstanding the Verdict\nDefendant contends he is entitled to a judgment notwithstanding the verdict based on plaintiffs failure to produce expert testimony on the cause of her emotional distress. Specifically, defendant argues that plaintiff failed to adduce expert testimony to establish that her emotional distress was caused by the delay in delivering the deceased infant.\nPlaintiff argues that defendant forfeited or waived his right to object to the verdict for negligent infliction of emotional distress by failing to object to the jury instructions and to the competence of the lay witnesses who testified about emotional distress.\nWe disagree with plaintiff that defendant has forfeited this issue. A defendant must object to an error at trial and include it in a written posttrial motion to preserve an issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The record indicates defendant repeatedly maintained in the trial court that plaintiff failed to present competent proof of causation for her emotional distress claim, absent expert testimony. Defendant moved for a directed verdict both at the close of plaintiffs case and at the close of all the evidence. In his trial arguments, defendant raised the issue of whether plaintiff presented sufficient evidence as a matter of law to submit the emotional distress issue to the jury. Accordingly, we determine defendant did not forfeit or waive this issue.\nWe review de novo a trial court\u2019s ruling on a motion for judgment notwithstanding the verdict. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). Additionally, whether expert testimony is required to establish negligent infliction of emotional distress is an issue of law, subject to de novo review. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998). A motion for judgment notwithstanding the verdict should only be granted when the evidence and inferences, viewed in the light most favorable to the nonmoving party, \u201cso overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992).\nDefendant argues that under this court\u2019s decision in Corgan v. Muehling, 143 Ill. 2d 296 (1991), claims for negligent infliction of emotional distress must be proven by expert testimony to ensure that any verdict for emotional distress is supported by competent evidence. Conversely, plaintiff contends that Corgan does not require expert testimony to establish emotional distress.\nIn Corgan, the plaintiff brought an action for psychological malpractice alleging the defendant therapist violated his duties when he engaged in sexual relations with her under the guise of therapy. This court examined the issue of whether a plaintiff must allege physical symptoms to support a claim for emotional distress. In rejecting such a requirement, we stated:\n\u201c[L]ack of precision is not a justifiable reason to preclude recovery, as expert witnesses such as psychiatrists, psychologists and social workers are fully capable of providing the jury with an analysis of a plaintiffs emotional injuries. ***\n*** [Tjhis court has not lost its faith in the ability of jurors to fairly determine what is, and is not, emotional distress. Furthermore, the women and men of the mental health care field have made significant improvements in the diagnosis, description and treatment of emotional distress.\u201d Corgan, 143 Ill. 2d at 311-12.\nIn reaching our conclusion that a plaintiff need not allege physical symptoms of emotional distress, this court quoted Knierim v. Izzo, 22 Ill. 2d 73 (1961):\n\u201c \u2018The stronger emotions when sufficiently aroused do produce symptoms that are visible to the professional eye and we can expect much more help from the men of science in the future. [Citation.] In addition, jurors from their own experience will be able to determine whether *** conduct results in severe emotional disturbance.\u2019 \u201d Corgan, 143 Ill. 2d at 311-12, quoting Knierim, 22 Ill. 2d at 85.\nWe agree with plaintiff that Corgan does not require expert testimony to establish emotional distress. The absence of medical testimony does not preclude recovery for emotional distress. Rather, \u201c[t]he existence or nonexistence of medical testimony goes to the weight of the evidence but does not prevent this issue from being submitted to the jury.\u201d Clark v. Owens-Brockway Glass Container, Inc., 297 Ill. App. 3d 694, 701 (1998).\nDefendant argues that Hiscott v. Peters, 324 Ill. App. 3d 114 (2001), supports his argument that a plaintiff cannot prove a negligent infliction of emotional distress claim without expert testimony. In Hiscott, the plaintiffs sought to recover for negligent infliction of emotional distress allegedly resulting from an automobile accident but did not present medical proof of emotional distress. Hiscott held that the plaintiffs failed to support their claim of emotional distress with expert medical proof. Hiscott, 324 Ill. App. 3d at 126. Hiscott concluded that this court\u2019s statement in Corgan \u201cthat it \u2018has not lost its faith in the ability of jurors to fairly determine what is, and is not, emotional distress\u2019 (Corgan, 143 Ill. 2d at 312)\u201d does not mean \u201cthat all plaintiffs involved in personal injury actions may seek damages for negligently inflicted emotional distress without medically verifiable proof.\u201d Hiscott, 324 Ill. App. 3d at 126. The appellate court concluded that the plaintiffs\u2019 testimony \u201cmore appropriately [fell] under the definition of \u2018loss of a normal life\u2019 \u201d than emotional distress. Hiscott, 324 Ill. App. 3d at 127. We determine that the court in Hiscott misread the holding in Corgan. Accordingly, we overrule the portions of Hiscott limiting Corgan to its facts and requiring all claims for severe emotional distress to be supported by expert medical proof. See Hiscott, 324 Ill. App. 3d at 126. We hold that expert testimony, while it may assist the jury, is not required to support a claim for negligent infliction of emotional distress.\nThis court\u2019s recent decision in People v. Hudson, 228 Ill. 2d 181 (2008), further supports our conclusion. In Hudson, the trial court allowed a 16-year-old victim of a home invasion to present lay testimony to establish her psychological trauma. On appeal, the defendant argued that expert testimony was required to establish psychological harm. This court held that \u201cjurors could reasonably find, without the assistance of expert testimony, that the circumstances of the offense were such as to cause psychological injury to a 16-year-old girl.\u201d Hudson, 228 Ill. 2d at 199. Hudson did recognize, however, that expert testimony may be required in some cases to prove psychological injury, but it was unnecessary given the facts of that case.\nWe believe the circumstances of this case are similar to those in Hudson. Based on personal experience alone, the jury could reasonably find that the circumstances of this case caused plaintiff emotional distress. Plaintiff explicitly testified on her experience of having the deceased infant protrude from her body for over an hour while awaiting Dr. Garcini\u2019s arrival. Plaintiff, the infant\u2019s father, and plaintiffs mother all testified about plaintiffs behavior and emotional state following the event. The record sufficiently established that plaintiff suffered emotional distress.\nDefendant also contends expert proof of causation is necessary when there is more than one possible cause of the emotional distress \u201cto ensure that the recovery is only for compensable emotional injuries proximately caused by the event for which defendant was found liable, and not for grief suffered, or other emotional distress resulting from other causes for which defendant is not liable.\u201d According to defendant, causation is at issue here when plaintiff simultaneously lost her infant and suffered a traumatic event by having the infant protruding from her body until defendant\u2019s arrival. Defendant surmises that expert testimony would have established whether the delay in delivering the deceased infant caused the entire emotional injury, as opposed to the death of the infant.\nHere, plaintiff\u2019s testimony established that the emotional distress she experienced derived directly from defendant\u2019s delay in delivering the deceased infant and not from the death of her child. Plaintiff testified that she was depressed, and could not eat, or sleep. She could only think about laying there for an hour and 10 minutes, and there was nothing she could do but \u201csit there like that with my baby.\u201d She further testified that she has these thoughts \u201c[a]ll the time\u201d and she has had thoughts of suicide because \u201c[i]t was so horrible\u201d and \u201cI\u2019m always reminded of that hour and ten minutes that I sat there with him.\u201d\nViewing the evidence in the light most favorable to the plaintiff as we must here, the trial testimony established that she suffered emotional distress because of defendant\u2019s delay in delivering the deceased baby. We cannot say that the evidence so overwhelmingly favored defendant that no contrary verdict could ever stand. Maple, 151 Ill. 2d at 453. Accordingly, we hold defendant is not entitled to a judgment notwithstanding the verdict due to the lack of expert testimony on the issue of plaintiffs emotional distress.\nIn the alternative, defendant argues he is entitled to a judgment notwithstanding the verdict because the verdict against him violates the single-recovery rule. Defendant also argues that if the single-recovery rule is inapplicable in this case, that he is entitled to a setoff for the amount paid to plaintiff by the hospital.\nWe first address defendant\u2019s argument that the single-recovery rule prohibits plaintiff from seeking recovery from him for emotional distress. According to defendant, plaintiff suffered a single emotional distress injury. The jury in the first trial determined the amount of plaintiffs damages for that injury, and plaintiff accepted full payment in satisfaction of the judgment amount against the hospital. Defendant contends that the single-recovery rule prohibits plaintiff from seeking a second recovery from him for the same emotional distress injury.\nAgain, our standard of review for a trial court\u2019s ruling on a motion for judgment notwithstanding the verdict is de novo. McClure, 188 Ill. 2d at 132. Generally, obtaining a judgment against one tortfeasor will not bar a plaintiff from bringing claims against any other tortfeasors. Saichek v. Lupa, 204 Ill. 2d 127, 137 (2003). A plaintiff may, however, receive only one full compensation for his or her injuries, and double recovery for the same injury is not allowed. Saichek, 204 Ill. 2d at 137. \u201cThe initial judgment, however, will normally serve as a limit on the plaintiffs entitlement to redress.\u201d Saichek, 204 Ill. 2d at 137.\nPlaintiff argues the appellate court correctly found that defendant failed to preserve this issue by raising it for the first time in a posttrial motion. We agree with plaintiff that defendant has forfeited his right to claim the single-recovery rule prohibits plaintiff from seeking damages from defendant for emotional distress.\nDefendant did not claim the single-recovery rule until he filed his posttrial motion. The basis for defendant\u2019s claim, however, arose at the end of the first trial. Defendant had multiple opportunities to raise this theory before the second trial concluded: (1) as an affirmative defense in the second trial; (2) through pretrial motions in limine in the second trial; (3) by filing a motion for directed verdict in the second trial; and (4) during the jury instruction conference in the second trial. Due to defendant\u2019s failure to raise this issue before the entry of the verdict after the second trial, plaintiff had no notice or opportunity during trial to defend against defendant\u2019s claim. Thus, defendant forfeited his right to assert the single-recovery rule by raising this issue for the first time in his posttrial motion. See MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560 (2009).\nFinally, we address defendant\u2019s argument that he is entitled to a setoff in the amount paid by the hospital to plaintiff. We held in our original opinion that defendant forfeited his setoff claim by raising it for the first time in his posttrial motion. Relying on MidAmerica Bank, we reasoned that section 2 \u2014 608 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 608 (West 2002)) required a setoff claim to be raised as a cross-claim in the defendant\u2019s answer. Upon consideration of defendant\u2019s petition for rehearing, we are persuaded that a modification to this court\u2019s opinion is necessary.\nIn his petition for rehearing, defendant argues that this court improperly concluded that he forfeited his claim for a setoff and urges this court to address the issue on the merits. According to defendant, a defendant\u2019s request for setoff to reflect amounts paid by settling defendants is in the nature of an enforcement action and a setoff that is not a counterclaim to be evaluated by the trier of fact may be brought at any time. See Star Charters v. Figueroa, 192 Ill. 2d 47, 48-49 (2000). In Star Charters, this court held that a motion for setoff may be brought after trial, as it is in the nature of an enforcement action and does not arise as a result of the trial.\nThe term \u201csetoff\u2019 is used in two distinct ways. In one sense, a setoff \u201c \u2018refers to the situations when a defendant has a distinct cause of action against the same plaintiff who filed suit against him\u2019 and is subsumed procedurally under the concept of counterclaim.\u201d Matsushita Electric Corp. of America v. Home Indemnity Co., 907 F. Supp. 1193, 1198 (N.D. Ill. 1995), quoting Hentze v. Unverfehrt, 237 Ill. App. 3d 606, 612 (1992). Applying this meaning, a setoff may refer to a situation when the defendant claims that the plaintiff has done something that results in a reduction in the defendant\u2019s damages. When a defendant pursues this type of setoff, the claim must be raised in the pleadings. See MidAmerica Bank, 232 IU. 2d at 574-75.\nIn another sense, however, the term \u201csetoff\u2019 may refer to a defendant\u2019s request for a reduction of the damage award because a third party has already compensated the plaintiff for the same injury. This occurs, for example, when a codefendant who would be liable for contribution settles with the plaintiff. This type of setoff may be raised at any time. See Star Charters, 192 Ill. 2d 47.\nIn this case, defendant did not have a cause of action against plaintiff. Rather, defendant sought a reduction in damages because a third party settled with plaintiff. Thus, defendant\u2019s setoff request constitutes an enforcement action rather than a counterclaim. Pursuant to Star Charters, defendant\u2019s claim for a setoff was not forfeited simply because it was not raised in the pleadings. Accordingly, we now address defendant\u2019s claim that he is entitled to a setoff in the amount paid by the hospital to plaintiff.\nDefendant argues that this case is analogous to Saichek v. Lupa, 204 Ill. 2d 127 (2003), and that he is entitled to a setoff of the full $175,000 paid by the hospital. Relying on Saichek, defendant contends the payment was in satisfaction of the judgment for plaintiffs emotional damages rendered against the hospital in the first trial and was not a settlement. We conclude that Saichek is readily distinguishable.\nIn Saichek, a default judgment was entered against one of two defendants, and the plaintiff brought non-wage garnishment proceedings to collect the default judgment. No appeal was taken. The defendant\u2019s insurance carrier paid the judgment, and the parties entered into a \u201cSatisfaction Release of Judgment\u201d releasing the judgment against only the insured and the carrier while expressly retaining the pending cause against the second defendant. Defendant here argues that some language in the Saichek agreement is similar to language in the instant agreement. He fails to recognize the significance of additional language in the agreement stating that the document broadly released and discharged the hospital, the individual nurses, \u201cand any other employees, officers, agents, personal representatives, assignee and any other persons or firms who are or might be liable from all claims, demands or rights of action which [Toni Thornton, individually and as special administrator of the estate of Jason Ebner, deceased,] or any of us, or any person or firm acting or claiming to act in my behalf, now have or might ever have, because of loss or expense, injuries or damages to person or property, both known or unknown, resulting or to result from any hospital care on or about August 28, 2000 at any facility operated by Silver Cross Hospital wherein the undersigned claimant asserts negligence, malpractice or other malfeasances on the part of Silver Cross Hospital, its agents, employees, officers or representatives.\u201d The agreement also stated that the \u201c[pjayment shall be the full, final and complete satisfaction of any and all claims, judgments, or causes of action as between said Plaintiff and Silver Cross Hospital.\u201d Moreover, the parties \u201cSPECIFICALLY UNDERSTOOD AND AGREED that this settlement is FULL, COMPLETE AND FOREVER FINAL, but is NOT to be construed as an admission of any legal liability for any of the consequences of the aforesaid incident, on the part of any of the persons and firms thereby released.\u201d (Emphases added.) Those provisions are inconsistent with the conclusion that the agreement was a purely satisfaction of judgment and not a settlement.\nMoreover, the facts underlying the agreements in the two cases are far different. Here, the parties entered into the settlement agreement while posttrial litigation was still ongoing. The parties\u2019 settlement agreement released multiple claims against both the hospital and the nurses, and no judgment against the nurses had even been entered. In contrast, the agreement in Saichek did not release any unresolved claims. Instead, the agreement acknowledged only that the judgment had been satisfied. In addition, Saichek reviewed the dismissal of the plaintiffs lawsuit against the second defendant, not the propriety of a setoff after the entry of judgment in that case. Accordingly, we reject defendant\u2019s contention that Saichek supports his position that the agreement here was a mere satisfaction of the judgment, justifying a setoff of the full payment received by plaintiff, and not a settlement, requiring an allocation of the settlement proceeds.\nThe determination of whether a defendant is entitled to a setoff is a question of law and, therefore, subject to de novo review. Board of Trustees of Community College District No. 508 v. Coopers & Lybrand, 208 Ill. 2d 259, 266 (2003). Where, as here, the setoff is in the nature of an enforcement action, the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2002)) controls. Section 2(c) of the Contribution Act provides:\n\u201cWhen a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.\u201d 740 ILCS 100/2(c) (West 2002).\nSection 2(c) is intended to prevent double recovery. Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 368 (1995). Section 2(c) also \u201censures that a nonsettling party will not be required to pay more than its pro rata share of the shared liability.\u201d Pasquale, 166 Ill. 2d at 368. Generally, a nonsettling party seeking a setoff bears the burden of proving what portion of a prior settlement was allocated or attributable to its share of the liability. Pasquale, 166 Ill. 2d at 369.\nHere, plaintiffs $175,000 settlement with the hospital specifically provided that plaintiff was not settling her claims against defendant. The settlement was not merely for damages sought by Toni Thornton, individually, but also for damages sought by Toni Thornton, as special administrator of the estate of Jason Ebner, deceased. In addition, it released a variety of claims against the hospital as well as against the individual nurses who had not been found hable prior to settlement. The judgment against defendant in the second trial, however, was only for Toni\u2019s individual claim of negligent infliction of emotional distress.\nDefendant argues that he need not establish the proper allocation of the settlement proceeds under the rationale in Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357 (1994). We reject that argument because Patton involved a defendant who was not a party to the case underlying the settlement, unlike defendant here, making its rationale inapplicable. Defendant also contends he is entitled to a setoff of the full settlement amount but admits he has failed to offer any proof of the proper allocation based on his share of the liability. Given the multiple parties, injuries, and claims settled in plaintiffs agreement with the hospital, the allocation of the full settlement proceeds to set off defendant\u2019s liability for only the negligent infliction of emotional distress cannot be justified in the absence of any supporting proof. No independent judicial determination of the proper allocation is possible. Accordingly, we hold that the trial court properly denied defendant\u2019s request for a setoff.\nIII. CONCLUSION\nWe hold that expert testimony is not required to support a claim for negligent infliction of emotional distress. We further hold that defendant has forfeited the single-recovery rule and is not entitled to a setoff. We therefore affirm the judgment of the appellate court.\nAffirmed.", "type": "majority", "author": "JUSTICE KILBRIDE" } ], "attorneys": [ "Robert R. Gorbold and Pamela Davis Gorcowski, of Kavanagh Grumley & Gorbold LLC, of Joliet, for appellant.", "E. Kent Ayers, Kent E Slater and John M. Spesia, of Spesia, Ayers & Ardaugh, of Joliet, for appellee.", "Leslie J. Rosen, of Chicago, for amicus curiae Illinois Trial Lawyers\u2019 Association." ], "corrections": "", "head_matter": "(No. 107028.\nTONI THORNTON, Indiv. and as Special Adm\u2019r of the Estate of Jason Anthony Ebner, Deceased, Appellee, v. FRANCISCO J. GARCINI, M.D., Appellant.\nOpinion filed October 29, 2009.\nModified upon denial of rehearing April 22, 2010.\nRobert R. Gorbold and Pamela Davis Gorcowski, of Kavanagh Grumley & Gorbold LLC, of Joliet, for appellant.\nE. Kent Ayers, Kent E Slater and John M. Spesia, of Spesia, Ayers & Ardaugh, of Joliet, for appellee.\nLeslie J. Rosen, of Chicago, for amicus curiae Illinois Trial Lawyers\u2019 Association." }, "file_name": "0100-01", "first_page_order": 112, "last_page_order": 129 }