Appeals court reviews expert testimony

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

Any lawyer with an upcoming trial should put some time aside to review the Illinois Appellate Court case of Klingelhoets v. Charlton-Perrin 2013 IL App (1st) 112412. The opinion will be explored  over the following two entries, discusses opening and closing statements, the calling of certain witnesses, discussion of the cost of treatment and the verdict of a jury. The case arose from Defendant’s appeal against a jury verdict in favor of plaintiff for the amount of $713,601. The plaintiff in this matter was crossing the street via a crosswalk with a group of colleagues when defendant ran a red light and struck plaintiff. The defendant admitted liability. The plaintiff refused medical attention at the scene and went to dinner with friends. While at dinner she fell ill and went to the emergency room.

The defendant contends that the trial court made five errors in the course of the trial and that the verdict was contrary to the manifest weight of evidence and should have been vacated for a new trial. Defendant asserted that plaintiff made repeated and unfair attacks on her medical expert. The plaintiff’s counsel referred to the expert as a “hired witness” who “made a career out of this.” In the plaintiff’s closing argument, the expert’s work was described as “an assembly line of defense opinions and reports.” The plaintiff also described the expert as “riding the defense train” for the last several years. The appellate court stated that opening statements are meant to inform the jury of what the parties intend to prove at trial. No comment should be made therein that an attorney cannot or will not prove. Reversal based on improper comments made during opening and closing statements will only occur where comments have been made that deliberately result in substantial  prejudice to the opposing party such that the result of the trial would have been different had the comments not been made. The court stated that it is well-established that a party is afforded broad latitude in making their closing argument. The court found that the comments in this case did not cause any substantial prejudice against the defendant because they were all supported by fact in evidence before the jury. The court found that it was an undisputed fact that the expert was a “hired” witness. It was also true that the expert’s entire professional time was now devoted to reviewing medical cases; it was also true that 99 percent of the time, he works for defendants. No prejudice was found from these statements.

The court found that a remittitur should only be employed when a jury reward falls outside the range of fair and reasonable compensation, appears to be the result of passion or prejudice or is so large that it shocks the judicial conscience. The court found that the decision was not against the manifest weight of evidence. The court also found that the jury’s breakdown of its award was appropriate and in line with the evidence presented at trial.


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