Dual Sole Proximate Causes: Asserting an Effective Oxymoronic Defense

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 20, Number 4 ( ) Feature Article By Lindsay Drecoll Brown Cassiday Schade LLP Dual Sole Proximate Causes: Asserting an Effective Oxymoronic Defense It is well settled in Illinois that evidence that another individual, entity, or thing contributed to a plaintiff s injury is irrelevant and inadmissible at trial unless the defendant is asserting a sole proximate cause defense. Leonardi v. Loyola Univ. of Chi., 168 Ill. 2d 83, 93, 658 N.E.2d 450, 455 (1995). The exact parameters of what is permissible in terms of this type of defense are constantly evolving. One oft-disputed aspect of the sole proximate cause defense is the availability of a defense asserting dual sole proximate causes. That is, a defense strategy wherein a defendant alleges that two entirely separate individuals, entities, or things are each solely to blame for the plaintiff s injury. Although the dual proximate cause defense is regularly asserted at trial, it often provokes the overly simplistic objection that a sole proximate cause defense is, by definition, reserved for situations where the defendant alleges that the plaintiff s injury should be attributed to one, and only one, cause other than the defendant s conduct. After all, how can more than one thing be the sole proximate cause of an injury? The majority of Illinois caselaw addressing the sole proximate cause defense fails to address specifically the foundational issue of whether a defendant may assert multiple sole proximate cause arguments at trial. As a result, responding to objections can be quite challenging to practitioners, given the lack of caselaw buttressing a defendant s right to assert multiple sole proximate cause defenses concurrently. Fortunately, there are some decisions generally addressing the assertion of a sole proximate cause defense wherein the defendant was permitted to assert dual sole proximate cause defenses. This article highlights two recent decisions that provide defendants with ammunition to respond adequately to challenges to the presentation of a dual sole proximate cause defense to ensure that evidence related to more than one empty chair can be presented to the jury, along with the appropriate jury instructions. Background on the Dual Sole Proximate Cause Defense A negligent party cannot avoid responsibility merely because another person is guilty of negligence and contributed to the same injury. Leonardi, 168 Ill. 2d at 93. Thus, evidence of another person s liability is irrelevant to the issue of a defendant s guilt. Id. Where a defendant denies that its conduct was a proximate cause of plaintiff s injuries and argues that another individual, entity, or thing was the sole proximate cause of the plaintiff s injury, however, evidence of that other entity s negligence becomes relevant. Id. As the Supreme Court of Illinois explained, [a] defendant has the right not only to rebut evidence tending to show that the defendant s acts are negligent and the proximate cause of claimed injuries, but also the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of the plaintiff s injuries. Id. at 101. There are two jury instructions for the sole proximate cause defense: (1) the long-form version of Illinois Pattern Jury Instruction 12.04, which applies where a plaintiff s injury is argued to be caused by some Page 1 of 5

2 individual other than the defendant, and (2) the long-form version of Illinois Pattern Jury Instruction 12.05, which applies where a plaintiff s injury is argued to be caused by some thing other than the defendant. See IPI Civil 3d Nos ; Before either instruction may be submitted to a jury properly, the law requires only that the defendant present some evidence that the non-defendant is the sole proximate cause of the plaintiff s injury. McDonnell v. McPartlin, 192 Ill. 2d 505, 648, 736 N.E.2d 1074, 1086 (2000). Actually demonstrating that the conduct of the nonparty was negligent is not necessary for a defendant. Id. at 519. As a result, practitioners need focus on causation only. Nevertheless, defendants cannot assume that their request for a sole proximate cause instruction will be granted. As explained in Holton v. Memorial Hospital: A defendant is not automatically entitled to a sole proximate cause instruction wherever there is evidence that there may have been more than one, or concurrent, causes of an injury or where more than one person may have been negligent. Instead, a sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not a proximate cause) of a plaintiff s injury is conduct of another person or condition. 176 Ill. 2d 95, 134, 679 N.E.2d 1202, 1220 (1997) (emphasis in original). In Holton, the court refused to allow instruction on sole proximate cause where the defendant, a hospital, failed to argue that the conduct of a nonparty was the only proximate cause of the plaintiffs injuries. Id. The defendant appealed, arguing that the jury should have been instructed on sole proximate cause and, if so instructed, would have found that the conduct of three other physicians was the sole proximate cause of the plaintiff s injury. Id. at 133. On appeal, the Illinois Supreme Court held that the trial court did not err in refusing to tender a sole proximate cause instruction, because the defendant failed to argue that only the negligence of persons other than the hospital employees proximately caused the plaintiffs injury. Id. (emphasis in original). Instead, the defendant attempted to establish that no medical negligence had occurred at all. The court reasoned that a sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not a proximate cause) of a plaintiff s injury is conduct of another person or condition. Id. According to a subsequent decision of the Illinois Supreme Court, the Court s holding in that case [Holton] was premised on the complete absence of evidence and argument by the hospital that the conduct of the nonparty physicians was the only proximate cause of the plaintiffs injuries. McDonnell, 192 Ill. 2d at Contrary to the insinuation created by the singular language emphasized in Holton, the sole proximate cause defense is not necessarily limited to one party or factor. In fact, in Nolan v. Weil-McLain, 233 Ill. 2d 416, 910 N.E.2d 549 (2009), the appellate court had found error in the trial court s ruling precluding the defendant from presenting evidence that the sole proximate cause of a decedent s death was his exposure to the asbestos-containing products of eleven separate nonparty entities, as opposed to the decedent s injuries being caused by exposure to the defendant s products. Additionally, decisions such as Ready v. United/Goedecki Services, 393 Ill. App. 3d 56, 911 N.E.2d 1140 (1st Dist. 2009), and Robinson v. Boffa, No , 2010 WL (Ill. App. Ct. 1st Dist. June 14, 2010), establish the viability of a defense strategy that points to not one empty chair, but two. Ready v. United/Goedecki Services In Ready, the plaintiff settled with two defendants, Midwest Generation EME ( Midwest ) and BMW Constructors ( BMW ), prior to trial. 393 Ill. App. 3d at 58. At trial, the court did not allow the remaining defendant, United/Goedecki Services ( United ), to admit evidence of the negligence of Midwest or BMW on the basis that United failed to preserve its right to assert a sole proximate cause defense by filing it as an affirmative defense. After the jury returned a verdict against United and in favor of the plaintiff, United appealed, arguing that it was deprived of a sole proximate cause defense when the trial court excluded Page 2 of 5

3 evidence of the conduct of Midwest and BMW. Id. The appellate court agreed, holding that the circuit court abused its discretion by granting the plaintiff s motions in limine to bar evidence of the conduct of Midwest and BMW. In so holding, the court reasoned that an answer that is a general denial that an injury was the result of or caused by the defendant s conduct is sufficient to permit the defendant, in support of its position, to present evidence that the injury was the result of another cause. Id. at 59. Although the court s decision does not specifically discuss the propriety of the duality of the defendant s sole proximate cause arguments, it is clear that the court found nothing problematic with the arguments, based on the court s decision that evidence of the conduct of both Midwest and BMW should have been admitted. Robinson v. Boffa The most recent Illinois appellate court decision involving a dual sole proximate cause defense is Robinson v. Boffa, No , 2010 WL (Ill. App. Ct. 1st Dist. June 14, 2010). In Robinson, a woman underwent surgery to remove a cancerous tumor. That surgery proved unsuccessful because a noncancerous mass was removed instead of the cancerous tumor. As a result, a second excision was performed five days later. Id. at *1. Although the tumor was successfully removed, the decedent passed shortly thereafter. Her estate subsequently filed a medical malpractice action against the surgeon, alleging that he negligently failed to determine during the first operation that the mass he removed was not cancerous. Id. at *1-2. Specifically, the plaintiff claimed that the defendant s failure to remove the cancerous tumor during the initial surgery and his scheduling of the second surgery so close in time to the initial surgery resulted in the death of the decedent. Id. at *1. At trial, the defendant surgeon asserted two proximate cause defenses. First, the defendant argued that the sole proximate cause of the decedent s death was her general poor health condition and preexisting health problems, including congestive heart failure, diabetes, and renal failure. Second, he asserted that the sole proximate cause of the decedent s death was the conduct of another treating physician, a gastroenterologist who had inaccurately described the location of the decedent s cancerous tumor on a colonoscopy report, prior to the initial surgery. The defendant claimed that this negligence caused the decedent s death by misleading the defendant with respect to the cancerous tumor s actual location, thereby causing him to remove a noncancerous mass. Id. at *6. The plaintiff filed a motion in limine to bar the admission of evidence in support of these proximate cause arguments, which was denied. Id. at *2. The trial court tendered both sole proximate cause jury instructions (the long forms of IPI and 12.05) finding that sufficient evidence was introduced in support of both of the defendant s sole proximate cause defenses. Robinson, 2010 WL at *1. The jury returned a general verdict in favor of the defendant and the plaintiff appealed, arguing that giving both sole proximate cause instructions was reversible error. Id. at *2. Specifically, plaintiff claimed there was insufficient evidence to support either sole proximate cause defense or the tendering of a jury instruction related thereto. Id. at *2, *6. On appeal, the court determined that the tender of the long form of IPI was proper because there was ample evidence adduced at trial in support of the defendant s assertion that decedent s demise was caused by her preexisting deteriorated medical condition. The court acknowledged that the only testimony causally connecting the prior medical condition with the decedent s death came from the defendant. The court further acknowledged that defendant admitted that he could not rule out the second surgery as the true cause of death. Nevertheless, the court found that admission related solely to the weight of the defendant s testimony in support of the sole proximate cause defense, and not to its admissibility. The court found that the defendant s testimony established a sufficient evidentiary basis for the defendant s sole proximate cause defense, such that the long form of IPI was properly tendered. Id. at *6-*7. In so holding, the court cited McDonnell v. McPartlin for the proposition that a defendant is entitled to the long form sole proximate cause jury instruction as long as some competent evidence is presented in support of that defense. Id. at *6 (citing 192 Ill. 2d 505, 521, 736 N.E.2d 1074 (2000)). Page 3 of 5

4 Dissimilarly, the court found there was no evidentiary basis for defendant s second sole proximate cause defense, that is, that the decedent s death resulted from the nonparty gastroenterologist s failure to provide accurate information regarding the location of the tumor in his report. The court determined that this alleged negligence could not be construed as a valid sole proximate cause of the decedent s injury. Robinson, 2010 WL at *4. According to the court, expert testimony adduced at trial established that a reasonable surgeon would have understood that the information provided in the gastroenterologist s report was only an estimate and, further, that the surgeon had an independent duty to ascertain whether the mass he was removing was, in fact, cancerous. Id. at *3, *5. As a result, the court found that even if the evidence could be construed as sufficient to support a contention that the gastroenterologist s negligence was an actual cause of the decedent s death it was not a legal cause because the defendant s complete reliance on the gastroenterologist s report was not foreseeable. Id. at *3-*4. That is, the court found that the defendant s intervening acts broke the causal connection between the alleged negligence and the injury. Id. at *4. Specifically, the court stated: Even if [the gastroenterologist s] colonoscopy report initially misled [the defendant] as to the precise location of the tumor, [the defendant] had an independent duty and responsibility to act on his own knowledge to conclusively determine if the suspected tissue mass was cancerous. We do not believe [the gastroenterologist] could have reasonably foreseen that a surgeon would rely on a colonoscopy report to conclusively determine whether a suspected tissue mass was in fact cancerous. As a result, [the gastroenterologist s] alleged negligence could not have been a proximate cause of the decedent s death. Id. at *4. In light of the above, the appellate court held the tendering of IPI to be erroneous. Id. Despite finding this instructional error, the court upheld the jury verdict in favor of the defendant, reasoning that the plaintiff failed to show that the error was prejudicial. Id. at *5-*6. In making this determination, the court applied the two-issue rule, which provides that where two or more defenses are presented and there is sufficient evidence to support at least one error-free defense, then the verdict must not be disturbed. In particular, the court focused on the possibility that the jury verdict might have been based upon the defendant s alternative sole proximate cause argument, relating to the decedent s preexisting poor medical condition. Id. The court could not say that the plaintiff was prejudiced by the instructional error as it affected only one of the two sole proximate cause defenses. Robinson, 2010 WL , at *5. Further, the concurring opinion noted that the verdict also could have resulted from a determination by the finder of fact that the plaintiff simply failed to establish that the defendant was negligent. Id. at *8. In any event, the lack of any special interrogatory explaining the jury s basis for its finding of no liability was key to defendant s success in this appeal. See Id. at *7. No commentary was provided in Ready or Robinson that in any way casts a shadow on the propriety of the defendants assertion of dual sole proximate cause defenses. Until a court rules directly on the propriety of this theory of defense, the implied acceptance of such defenses provides practitioners with the best argument in support of their right to assert dual sole proximate cause defenses in the face of objections to the same. As reiterated in both decisions, a defendant is entitled to argue that some causative factor other than the defendant s conduct was the sole proximate cause of the plaintiff s injuries and, assuming some competent evidence is presented, to have the jury instructed on this theory. Robinson, 2010 WL , at *13. This right is not limited to only one causative factor, as evidenced by the court s acquiescence to the dual proximate cause defenses asserted in Ready and Robinson. As Ready and Robinson illustrate, Illinois courts should allow defense counsel to assert dual sole proximate cause defenses based on arguments that the sole cause of the plaintiff s injury can be attributed alternatively to more than one nonparty entity or causative factor. Page 4 of 5

5 About the Author Lindsay Drecoll Brown is an associate at the law firm of Cassiday Schade LLP, where she concentrates her practice in civil litigation, with an emphasis on medical malpractice, professional liability and product liability. Ms. Brown received her J.D., cum laude, from Loyola University Chicago School of Law, and her undergraduate degree from Michigan State University with high honors. She is a member of the IDC. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 20, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL , , idc@iadtc.org Page 5 of 5