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    "parties": [
      "WILLIAM RUTLEDGE, Plaintiff-Appellant, v. ST. ANNE\u2019S HOSPITAL, Defendant-Appellee."
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        "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nPlaintiff William Rutledge appeals a judgment entered after an adverse jury verdict in a medical malpractice action. Plaintiff contends that he was prejudiced (1) by numerous remarks and arguments made by defense counsel in her opening and closing statements; (2) by defense counsel\u2019s violation of a stipulation as to the whereabouts of a witness not under either parties\u2019 control; and (3) by defense counsel\u2019s violation of defendant\u2019s own motion in limine.\nWe find that the cumulative effect of defense counsel\u2019s actions in ignoring the motion in limine and making improper statements which went far beyond the bounds of mere advocacy so prejudiced plaintiff that he was denied a fair trial and we remand this cause for a new trial.\nPlaintiff brought this action for injuries he claims were sustained as a result of the negligence of Nurse Regina Zaworski, an employee of the defendant hospital. Plaintiff was hospitalized for a bladder infection in June of 1983, and on June 14 an intravenous needle and plastic catheter (IV) were inserted into his left wrist. The needle was removed and the catheter was taped to keep it in place if needed to transmit fluids or medication.\nWhen Nurse Zaworski later removed the catheter, plaintiff claims she attempted to remove the tape and catheter at the same time but the tape would not come loose. Nurse Zaworski tried three or four times to extract the catheter but the tape remained adhered to his wrist and caused the catheter to move in a plunging direction while still inserted in his wrist. When the catheter repeatedly plunged into his wrist, it \u201cwiggled\u201d in a manner that caused extreme pain and plaintiff complained of the pain to Nurse Zaworski.\nOn the morning after plaintiff was discharged from the hospital on June 16, 1983, he noticed swelling in his wrist where the IV had been placed and called the hospital to report it. Three weeks later when plaintiff appeared for his next doctor\u2019s appointment, plaintiff told his physician, Dr. George Detrana, that he experienced pain in his left wrist and arm and that the vein in his wrist where the IV had been \u201cwas gone.\u201d Dr. Detrana diagnosed plaintiff as having arthritis. Unsatisfied with this determination as to the cause of the pain, plaintiff sought help from Dr. Peter Mayer in November of 1983, five months after his discharge from the hospital.\nDr. Mayer saw plaintiff six or seven times between November 1983 and November 1986 and diagnosed that plaintiff had a blood clot which resolved itself, leaving plaintiff with thrombophlebitis, an inflammation of the vein. Dr. Mayer testified that plaintiff currently has a chronic post-thrombophlebitic condition, which is a lesser but lasting pain associated with thrombophlebitis.\nTestifying as an expert, Dr. Mayer stated that based upon the medical history which plaintiff gave him, he believes plaintiff\u2019s thrombophlebitis was caused by an IV which was roughly manipulated upon withdrawal.\nNurse Jeri Fiset, director of nursing at Lutheran General Hospital, also testified as an expert for plaintiff, stating that the standard of care for removing an IV requires removal of any dressings or tape securing the IV prior to removal of the IV itself. Her opinion, based upon the passages she read in plaintiff\u2019s deposition, was that Nurse Zaworski violated the standard of care in her removal of the IV.\nExpert testimony for defendant included Claudia Beckmann, a part-time practicing nurse and part-time nursing instructor. Ms. Beckmann stated that she did not believe it necessary to remove all tape from the catheter prior to removal, nor did she believe that the hospital deviated from the standard of care, based upon her examination of plaintiff\u2019s medical records.\nNurse Zaworski testified for defendant, stating that while she had no independent memory of plaintiff, she did not believe she pulled on the catheter in the way plaintiff described, had never had such an experience, and would have noted it on plaintiff\u2019s hospital chart.\nPlaintiff first alleges that in her opening statement, defense counsel strayed from the facts to make speeches, arguments and legal dissertations, sometimes using inflammatory language. Among the alleged transgressions in defense counsel\u2019s opening, all of which sustained objection: (1) counsel\u2019s characterization of the situation that \u201calthough the hospital is being sued here, the contest here is between Mr. Rutledge and Nurse Zaworski\u201d; (2) counsel\u2019s improper attempts to argue law to the jury despite the parameters of appropriate legal theory and terminology set by the trial judge in chambers; (3) counsel\u2019s description of a \u201csmoking gun\u201d as an example of real evidence; (4) counsel\u2019s improper explanation to the jury that an expert witness must be in the same field as the person being charged; (5) counsel\u2019s gratuitous comments that the evidence is composed of \u201cthe medical records that were created before lawyers were involved\u201d; (6) counsel\u2019s statement that plaintiff tells \u201ctwo different stories\u201d; and (7) counsel\u2019s use of inflammatory language in stating that plaintiff accused Nurse Zaworski of \u201cmangling\u201d his arm.\nPlaintiff also contends that there were numerous prejudicial comments made in defense counsel\u2019s closing argument as well, including: (1) counsel\u2019s comment that plaintiff failed to call Dr. Detrana as a witness, this after the parties had stipulated that the doctor, under neither party\u2019s control, was unavailable because of illness; (2) counsel\u2019s implication that plaintiff failed to sue the proper doctor; (3) counsel\u2019s statement that defendant was responsible for showing the jury \u201cthe only real evidence,\u201d meaning the medical records, when it was plaintiff who placed them into evidence; (4) defense counsel\u2019s second use of the term \u201csmoking gun\u201d when it had been deemed objectionable in opening argument; and (5) counsel\u2019s statement to the jury that Nurse Zaworski\u2019s parents were in the courtroom watching her, an improper implication that defendant\u2019s witness must be telling the truth.\nA reviewing court may not reverse a trial court\u2019s decision to grant a new trial merely because it would have come to a different conclusion, but rather it is required to find that the trial court abused its discretion in granting the post-trial relief. (Marotta v. General Motors Corp. (1985), 108 Ill. 2d 168, 177, 483 N.E.2d 503; Bishop v. Baz (1991), 215 Ill. App. 3d 976, 980, 575 N.E.2d 947.) In determining whether such discretion was abused, we must consider whether the losing party was denied a fair trial. Marotta, 108 Ill. 2d at 177-78.\nDefendant contends that plaintiff waives the alleged prejudice resulting from defense counsel\u2019s opening statement and violation of the motion in limine because plaintiff did not raise them in his post-trial motion.\nWhile this is generally true, and the record in this case demonstrates that plaintiff did fail to raise them in his post-trial motion, it has long been held that a reviewing court can override waiver considerations in order to carry out its responsibility to provide a just result. In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446, 557 N.E.2d 869; Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831; American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133,139, 569 N.E.2d 1377.\nThe rule of waiver is a limitation on the parties and not upon the jurisdiction of the reviewing courts. (Sutton, 136 Ill. 2d at 446; Be coraro v. Kesner (1991), 217 Ill. App. 3d 1039, 1045, 578 N.E.2d 53.) Supreme Court Rule 366 allows a reviewing court to use its discretion to \u201center any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require.\u201d 134 Ill. 2d R. 366(aX5).\nIn Hux, the supreme court determined:\n\u201cThese provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.\u201d Hux, 38 Ill. 2d at 224-25.\nIn the present case, plaintiff made appropriate objections at trial, thus alerting defendant and the trial court to its concerns about the issues here asserted. Therefore, we may invoke our power to examine plaintiff\u2019s issues regarding defendant\u2019s opening statement and violation of the motion in limine in order to provide a just result. Sutton, 136 Ill. 2d 441.\nPlaintiff did raise the issue of defense counsel\u2019s closing argument in his post-trial motion and we examine that argument to determine whether plaintiff was denied a fair trial. Marotta, 108 Ill. 2d at 177-78.\nGenerally, improper argument or misconduct of counsel can be a sufficient basis to require a new trial. Mykytiuk v. Stamm (1990), 196 Ill. App. 3d 928, 936, 554 N.E.2d 505; Bisset v. Village of Lemont (1983), 119 Ill. App. 3d 863, 865, 457 N.E.2d 138.\nIn examining defense counsel\u2019s closing argument, we find that plaintiff was denied a fair trial because of defense counsel\u2019s prejudicial remarks which distorted and misrepresented the evidence and the law and was calculated to mislead the jury.\nThere are several transgressions upon which we particularly focus to form the basis of our findings. The first is the comment by defense counsel in her closing argument that plaintiff failed to call Dr. Detrana as a witness. In a conference with the trial judge, the parties agreed that Dr. Detrana was under neither party\u2019s control and they stipulated that he was unavailable to testify because of illness. In her closing, however, defense counsel stated:\n\u201cHe\u2019s also angry at Dr. Detrana, he tells you, because Dr. Detrana told him there\u2019s nothing wrong with your arm. Dr. Detrana didn\u2019t treat him for that arm. Dr. Detrana didn\u2019t even want to look at the arm.\nHas anyone come in here and said Dr. Detrana wasn\u2019t qualified? Where is Dr. Detrana? How come they didn\u2019t bring him in?\u201d\nComments in closing argument have been held improper where a party draws attention to an opponent\u2019s failure to call a witness when that witness is not under the opponent\u2019s control. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 382, 553 N.E.2d 291.) Here, even though the parties had discussed and agreed that Dr. Detrana was unavailable due to illness, defense counsel willfully disregarded the stipulation in a clear attempt to mislead the jury into believing plaintiff did not want the jury to hear Dr. Detrana\u2019s testimony.\nNext, we find defense counsel improperly implied to the jury that plaintiff was suing the wrong doctor when she stated in her closing:\n\u201cThere\u2019s been some implication in this courtroom that maybe the Valium that was given in the operating room to sedate the patient, Valium, ten milligrams I-V, per, meaning by Dr. Dahms, caused the patient a problem. They didn\u2019t sue Dr. Dahms.\u201d\nArguments concerning the nonjoinder of a potential party are improper (Rapacki v. Pabst (1980), 80 Ill. App. 3d 517, 522, 400 N.E.2d 81; Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 852, 365 N.E.2d 390) and such argument can be reversible error if the party can show prejudice resulted so as to deny a fair trial. (Rapacki, 80 Ill. App. 3d at 522.) Here, with nothing in the record upon which to base these remarks, defense counsel again insinuates that plaintiff is hiding something from the court or jury.\nWe also find that defense counsel improperly misrepresented plaintiff\u2019s exhibits as evidence which defendant alone presented to the jury. Plaintiff requested from defendant and entered into evidence hospital charts relating to plaintiff and hospital policies regarding insertion and withdrawal of IVs. However, in her closing, defense counsel states:\n\u201cAnd I would submit to you that the only real evidence that you saw whatsoever [sic] in this case was the medical records from St. Anne\u2019s Hospital and the policy and procedure from St. Anne\u2019s Hospital. Neither of which the Plaintiff showed you. They were shown to you by the Defendant.\u201d\nDefense counsel\u2019s outright mischaracterization and subtle chicanery here is an attempt once again to induce the jury into believing that plaintiff is hiding evidence from the jury that will favor defendant. This court in Mykytiuk granted plaintiff a new trial where defendant was found to have prejudiced plaintiff by creating an impression to the jury that plaintiff was holding back evidence. (Myky tiuk, 196 Ill. App. 3d at 936.) While that case involved defendant\u2019s attempt to improperly introduce evidence at trial, the two circumstances leave similar impressions upon the jury that plaintiff is not completely honest and credible. See also People v. Lopez (1987), 152 Ill. App. 3d 667, 679, 504 N.E.2d 862; People v. Clark (1983), 114 Ill. App. 3d 252, 256, 448 N.E.2d 926.\nDefense counsel argues that because the trial court sustained plaintiff\u2019s objections and generally admonished the jury to disregard most of them, there has been no prejudice to plaintiff. We disagree and find that plaintiff has been denied a fair trial. We determine that defense counsel\u2019s remarks and insinuations at closing argument, taken with the previously mentioned overreaching, were too pervasive and insidious to have had no prejudicial effect on the jury.\nWe also address plaintiff\u2019s contention that he was prejudiced by defense counsel\u2019s violation of defendant\u2019s own motion in limine which prohibited Nurse Fiset, plaintiff\u2019s expert, from \u201clooking at and commenting on, and basing her opinions at trial on any material she hadn\u2019t used to compile her affidavit, on any materials not used to form the basis of her deposition.\u201d This motion prohibited Nurse Fiset from commenting on plaintiff\u2019s hospital records, since her opinion was based upon her review of plaintiff\u2019s deposition.\nThe record establishes that just prior to her direct examination, defense counsel asked to be heard in chambers, whereupon she sought to receive assurances from the court that plaintiff\u2019s direct would be within the limitations of the motion in limine. At that time, defense counsel specifically represented that she relied upon the motion\u2019s limitations in preparing her cross-examination of the witness. The trial judge gave assurances that he would enforce the motion and plaintiff\u2019s counsel agreed to honor it.\nAlthough plaintiff\u2019s attorney did not stray beyond the limits of the motion upon direct, during cross-examination defense counsel improperly proceeded to initiate a line of questioning regarding the same medical records which she sought to put beyond plaintiff\u2019s reach.\nDuring this cross-examination, defense counsel continued to violate the motion in limine after the court sustained plaintiff\u2019s objections and admonished the jury. Defense counsel also continued to barrage the jury after the court\u2019s rulings.\nThe purpose of a motion in limine is to permit a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. In this way, the moving party is protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon the jury. Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268.\nDefendant argues that since the purpose is to protect the moving party, the moving party is free to violate its own motion without error since the nonmoving party may examine the witness on redirect. Defense counsel also contends that she had a right to make repeated attempts along that line of questioning since plaintiff\u2019s objections and the four sustained rulings failed to alert her to the nature of the objections.\nWe find that defense counsel violated her own motion to create an appearance that plaintiff was concealing the hospital records from his own witness.\nCourts caution the use of a motion in limine since there is potential danger that the motion may unduly restrict the opposing party\u2019s representation of its case. (Reidelberger, 83 Ill. 2d at 550; Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 935, 479 N.E.2d 1091.) The motion should not frustrate the search for and presentation of the truth, and both sides must be heard so that the trier of fact does not reach a decision based upon misinformation. (Zelinski, 133 Ill. App. 3d at 936.) In fairness to the parties, the limitations should apply to all sides to allow careful practitioners to thoughtfully prepare their examination and cross-examination of witnesses.\nWhile defense counsel\u2019s violation of the motion, standing alone, might not have prejudiced plaintiff, we find it substantially contributes to a cumulative prejudice against plaintiff caused by defense counsel over the course of the trial. The jury, comparing the content of plaintiff\u2019s direct examination of the witness to defendant\u2019s accusatory cross-examination, may well have concluded that plaintiff chose not to interrogate Nurse Fiset on the hospital records because such testimony would damage plaintiff\u2019s case.\nPrejudice from repeated attempts to question a witness on inadmissible evidence has previously been condemned in Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 441, 278 N.E.2d 404. In that case, defense counsel repeatedly attempted to introduce immaterial evidence, and the trial court repeatedly sustained plaintiff\u2019s objections and admonished the jury. The court stated that defense counsel\u2019s persistence demonstrated that prejudice against plaintiff was intended and that defendant\u2019s goal was to create in the mind of the jurors the impression that the objecting party was attempting to conceal evidence. Geisberger, 3 Ill. App. 3d at 441.\nUpon examination of the record, we do not believe that defense counsel was unaware of the basis of plaintiff\u2019s objections and the trial court\u2019s rulings and so could innocently forge ahead with her misleading line of questioning since (1) defense counsel had requested a hearing in chambers prior to this witness\u2019 testimony specifically to emphasize her reliance upon the motion and its limitations, and (2) plaintiff made it clear in his objections that defense counsel was ignoring the limitations of the motion in limine.\nFurther, we disagree with defendant that plaintiff had a chance to cure any prejudice upon redirect. Plaintiff\u2019s attempt to correct the impression of chicanery created by defense counsel\u2019s cross-examination was likely to be of little value since the perception was quite strong that plaintiff attempted subterfuge on the issue of hospital charts and records. Also, defense counsel upon recross again attempted the same line of questioning.\nWhile defense counsel argues that she was merely trying to show that the witness was not qualified as an expert, the Geisberger court states:\n\u201c[Ijnnuendos and prejudice created by such questions cannot always be overcome, and approval of such questions affecting credibility, under the guise and pretense of laying a foundation for impeachment could defeat many meritorious causes without proof made or offered.\u201d Geisberger, 3 Ill. App. 3d at 442.\nLawyers are properly advised that they should zealously represent their clients, but that zeal has its bounds. Although the trial court made appropriate evidentiary rulings, defense counsel ignored the directions of the court in her efforts to impact upon the jury.\nWhile the adversary system of litigation is alive and well, it does not require that counsel become gladiators prepared to fight to the death. It is not enough for courts of review, bar association leaders and others to decry the lack of civility and fairness in our judicial system. When counsel goes beyond the rules, her client must bear some of the responsibility for her inexcusable conduct.\nBecause we find plaintiff was prejudiced by remarks in defense counsel\u2019s closing statement and by her violation of defendant\u2019s own motion in limine, we need not decide whether remarks made in defense counsel\u2019s opening statement could, by themselves, be prejudicial error.\nWe do not grant a new trial lightly, and gravely consider the trial court\u2019s determination in this regard. We are also mindful of the respect to be accorded juries and the unlikelihood that they will be deflected from their sworn duty by the lawyer\u2019s conduct. Further, we recognize that special care must be taken when reviewing a case such as this since it is difficult to determine the precise impact of such misconduct. There is no magic number of instances that tilts the scales of justice.\nRather, our determination here is predicated on the weight of prejudice cumulatively applied by defense counsel\u2019s actions. We note that throughout the record, not only in the passages cited in this opinion, counsel\u2019s conduct, both in chambers and in front of the jury, too often goes beyond the margin of zealous advocacy to become acrimonious, overly contentious, and unswervingly determined to persuade the jury that plaintiff is attempting to conceal evidence without any evidentiary foundation.\nThe fact that this inflammatory disposition survives to become apparent in the record only supports our finding that the jury\u2019s decision was prejudiced by her actions and that plaintiff was denied a fair trial.\nFor the foregoing reasons, the judgment of the trial court is reversed and the cause remanded for new trial.\nReversed and remanded.\nRIZZI and CERDA, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE GREIMAN"
      }
    ],
    "attorneys": [
      "Propp & Schultz, of Chicago, for appellant.",
      "Hinshaw & Culbertson, of Chicago (Debra S. Davy, Nancy G. Lischer, and Gary J. Bazydlo, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "WILLIAM RUTLEDGE, Plaintiff-Appellant, v. ST. ANNE\u2019S HOSPITAL, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201490\u20141653\nOpinion filed June 10,1992.\nPropp & Schultz, of Chicago, for appellant.\nHinshaw & Culbertson, of Chicago (Debra S. Davy, Nancy G. Lischer, and Gary J. Bazydlo, of counsel), for appellee."
  },
  "file_name": "0786-01",
  "first_page_order": 806,
  "last_page_order": 815
}
