Book containing this chapter and any forms referenced herein is available for purchase at or by calling

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1 The chapter from which this excerpt was taken was first published by IICLE in the 2018 edition of Medical Malpractice and is posted or reprinted with permission. Book containing this chapter and any forms referenced herein is available for purchase at or by calling

2 12 Trial ROGER R. CLAYTON Heyl, Royster, Voelker & Allen, P.C. Peoria KEITH A. HEBEISEN Clifford Law Offices Chicago Mr. Clayton gratefully acknowledges the assistance of Emily Perkins and Seth TeBeest, associates at Heyl, Royster, Voelker & Allen, P.C., in the preparation of this chapter. Mr. Hebeisen gratefully acknowledges the assistance of Sarah F. King, an associate attorney at Clifford Law Offices, in the preparation of this chapter. COPYRIGHT 2018 BY IICLE. 12 1

3 MEDICAL MALPRACTICE I. [12.1] Scope of Chapter II. In Limine Matters A. Motions in Limine 1. [12.2] Generally 2. [12.3] Considerations in the Preparation of Written Motions in Limine B. [12.4] In Limine Objections C. [12.5] In Limine Orders D. [12.6] Violation of an In Limine Order III. Frye/Daubert A. [12.7] Illinois Rule of Evidence 702 B. [12.8] History of the Frye Motion C. [12.9] The New or Novel Rule and the General-Acceptance Standard D. [12.10] How a Frye Issue Arises E. [12.11] The Burden of Showing General Acceptance F. [12.12] Evidence That Can Be Used in a Frye Hearing IV. Developing a Theme A. [12.13] Why a Theme Is Important B. [12.14] Developing a Theme C. [12.15] Putting the Theme to Work D. [12.16] Theme Checklist V. [12.17] Jury Selection A. [12.18] General Issues in Questioning Prospective Jurors B. [12.19] Juror Profile Chart C. [12.20] Topics and Questions 1. [12.21] Tort Reform Issues 2. [12.22] Knowledge of Relevant Medical Issues 3. [12.23] Experience with Defendant Hospital D. [12.24] Challenges During Jury Selection 1. [12.25] Excuses for Cause 2. [12.26] Peremptory Challenges 3. [12.27] Final Objections to the Composition of the Jury

4 TRIAL E. [12.28] Objections During Jury Selection 1. [12.29] Questions That Misstate the Law 2. [12.30] Questions That May Embarrass Prospective Jurors 3. [12.31] Hypothetical Questions F. [12.32] Jurors Conducting Internet Research VI. [12.33] Opening Statements A. [12.34] Making the Most of the Opening Statement B. [12.35] Presenting a Theory and Compelling Story C. [12.36] Demonstrative Exhibits in Opening Statements D. [12.37] Objections During Opening Statements 1. [12.38] Unsupported by the Evidence 2. [12.39] Statements Referring to Inadmissible Evidence 3. [12.40] Argumentative 4. [12.41] Personal Beliefs 5. [12.42] Misstatements of Law E. [12.43] Admissions of Fact VII. Direct Examination A. [12.44] Essential Goals of Direct B. [12.45] Selecting Witnesses C. [12.46] Preparing Plaintiff for Direct; Checklist D. [12.47] Preparing Lay Witnesses for Direct; Checklist and Sample Questions E. [12.48] Preparing Expert Witnesses for Direct; Checklists and Sample Questions F. [12.49] Common Objections During Direct Examination of Expert Witnesses G. [12.50] Preparing Treating Physician for Direct; Checklist and Sample Questions H. [12.51] Preparing Defendant Physician for Direct; Checklist I. [12.52] Preparing Witnesses for Cross-Examination J. [12.53] Redirect Examination K. [12.54] Closed Doors VIII. Cross-Examination A. [12.55] Essential Strategies for Cross; Checklist and Sample Questions B. [12.56] Crossing Lay Witnesses C. [12.57] Crossing an Expert Witness or Physician D. [12.58] Impeachment ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 3

5 MEDICAL MALPRACTICE IX. Demonstrative Evidence A. [12.59] Demonstrative Evidence Basics B. [12.60] Photographs and Videos C. [12.61] Enlargements, Diagrams, Charts, Graphs, Maps, and Floor Plans D. [12.62] Plaster Casts and Three-Dimensional Models E. [12.63] Timelines X. [12.64] Documentary and Nontestimonial Evidence A. [12.65] Self-Authenticating Documents Under Illinois Rule of Evidence 901 B. [12.66] Medical Records C. [12.67] Medical Studies and Treatises D. [12.68] Hospital Policies and Standards of Professional Organizations XI. Closing Arguments A. [12.69] Generally B. [12.70] Plaintiff s Closing C. [12.71] Defendant s Closing D. [12.72] Plaintiff s Rebuttal XII. Damages A. [12.73] Generally 1. [12.74] Lost Chance 2. [12.75] Future Injury B. [12.76] Setoffs XIII. Jury Issues A. [12.77] Questions by Jurors B. [12.78] Instructions 1. [12.79] Use of Non-Pattern Jury Instructions for Lost Chance and Future Injury 2. [12.80] Use of Jury Instructions During Closing Arguments 3. [12.81] Copy of Instructions to Jury 4. [12.82] Special Interrogatories 5. [12.83] Aggravation of Preexisting Condition 6. [12.84] Missing-Witness Instruction 7. [12.85] Future Pain and Suffering

6 TRIAL 8. [12.86] Mitigation of Damages 9. [12.87] Contributory Negligence a. Delay in Seeking Treatment (1) [12.88] Before Seeking Initial Treatment (2) [12.89] During Course of Medical Treatment (3) [12.90] After Discharge from Medical Treatment b. [12.91] Failure To Follow Physician s Advice c. [12.92] Failure To Report Symptoms d. [12.93] Refusal of Treatment (1) [12.94] Leaving hospital prematurely (2) [12.95] Refusing to return for further treatment (3) [12.96] Failing to submit to corrective surgery e. [12.97] Failure To Obtain a Second Opinion f. [12.98] Consumption of Alcoholic Beverages g. [12.99] Suicide h. [12.100] Negligence Before Treatment at Issue i. [12.101] Contributory Negligence by Next of Kin in a Death Case j. [12.102] I.P.I. Civil No , Professional Negligence Duty k. [12.103] Former I.P.I. Civil No , Duty of Specialist Professional Negligence C. [12.104] Verdict Forms D. Jury Deliberation Issues 1. [12.105] Deadlocked Jury 2. [12.106] Requests for Exhibits During Deliberations 3. [12.107] Juror Research XIV. [12.108] Conclusion XV. Appendix Motions, Jury Instructions, and Closings A. [12.109] Example of Plaintiff s Motions in Limine B. [12.110] Example of Defendant s Motion in Limine C. [12.111] Example of Motion in Limine Order D. [12.112] Example of Plaintiff s Motion in Limine Regarding Specific Syndrome E. Plaintiff s Jury Instructions 1. [12.113] Plaintiff s Instruction No. 1, I.P.I. Civil No. 1.01, Preliminary Cautionary Instructions 2. [12.114] Plaintiff s Instruction No. 2, I.P.I. Civil No. 2.01, Evaluation of Deposition or Prior Testimony ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 5

7 MEDICAL MALPRACTICE 3. [12.115] Plaintiff s Instruction No. 3, I.P.I. Civil No. 3.02, Witness Who Has Been Interviewed by Attorney 4. [12.116] Plaintiff s Instruction No. 4, I.P.I. Civil No. 3.04, Circumstantial Evidence 5. [12.117] Plaintiff s Instruction No. 5, I.P.I. Civil No. 3.08, Opinion Testimony 6. [12.118] Plaintiff s Instruction No. 6, I.P.I. Civil No , Proximate Cause Definition 7. [12.119] Plaintiff s Instruction No. 7, I.P.I. Civil No , Issues Made by the Pleadings Negligence One or More Defendants 8. [12.120] Plaintiff s Instruction No. 8, I.P.I. Civil No , Meaning of Burden of Proof 9. [12.121] Plaintiff s Instruction No. 9, I.P.I. Civil No , Burden of Proof on the Issues Negligence One Plaintiff and One Defendant No Contributory Negligence 10. [12.122] Plaintiff s Instruction No. 10, I.P.I. Civil No , Measure of Damages Personal and Property 11. [12.123] Plaintiff s Instruction No. 11, I.P.I. Civil No , Measure of Damages Personal Injury Aggravation of Pre-Existing Condition No Limitations 12. [12.124] Plaintiff s Instruction No. 12, I.P.I. Civil No , Damages Arising in the Future Extent and Amount 13. [12.125] Plaintiff s Instruction No. 13, I.P.I. Civil No , Damages Arising in the Future Mortality Tables as Evidence of Damages Injury Case 14. [12.126] Plaintiff s Instruction No. 14, I.P.I. Civil No. B45.01, Instruction on Use of Verdict Forms Negligence Only Single Plaintiff and Defendant 15. [12.127] Plaintiff s Instruction No. 15, I.P.I. Civil No. B45.01.A, Verdict Form A Single Plaintiff and Defendant No Contributory Negligence Pleaded (Modified) 16. [12.128] Plaintiff s Instruction No. 16, I.P.I. Civil No , Both Principal and Agent Sued No Issue as to Agency 17. [12.129] Plaintiff s Instruction No. 17, I.P.I. Civil No , Professional Negligence Duty

8 TRIAL F. Defendant s Jury Instructions 1. [12.130] Defendant s Instruction No. 1, I.P.I. Civil No , Negligence Intervention of Outside Agency 2. [12.131] Defendant s Instruction No. 2, I.P.I. Civil No , In Absence of Liability No Occasion To Consider Damages 3. [12.132] Defendant s Instruction No. 3, I.P.I. Civil No. B45.01.C, Verdict Form C Single Plaintiff and Defendant Contributory Negligence More Than 50% 4. [12.133] Defendant s Instruction No. 4, Non-I.P.I. 5. [12.134] Defendant s Instruction No. 5, I.P.I. Civil No , Issues Made by the Pleadings Negligence One or More Defendant s G. [12.135] Example of Plaintiff s Closing H [12.136] Example of Defendant s Closing I. [12.137] Example of Plaintiff s Rebuttal ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 7

9 12.1 MEDICAL MALPRACTICE I. [12.1] SCOPE OF CHAPTER This chapter addresses trial techniques for medical malpractice cases. The purpose is to provide guidance through general discussion in an accessible format. More specific suggestions are also offered through practice pointers, checklists, forms, secondary sources, and relevant Illinois caselaw. This chapter does not delve deeply into topics that are not unique to medical malpractice, such as Illinois evidentiary rules or how to determine damages, as these issues are covered in detail in other handbooks in the IICLE library. The authors provide insight and comments for plaintiff and defense attorneys alike and have made every effort to design this chapter to be practical and user-friendly. There is great wisdom in the know your adversary notion; thus, the authors suggest reviewing materials provided for those working both sides of the case. II. IN LIMINE MATTERS A. Motions in Limine 1. [12.2] Generally At trial, the first opportunity to make objections is in the form of a motion in limine. These motions are typically presented before selection of the jury but can be presented at any time. By strict definition, a motion in limine is made before evidence is offered. Motions in limine are used in a variety of situations to address the exclusion of evidence ranging from relevancy to hearsay to prejudice. Sometimes a motion in limine is used to secure a ruling in advance that evidence is admissible. These motions ask the judge to rule on particular evidence that is to be offered or introduced at trial. Motions in limine are often used to prevent the introduction of improper evidence that would be highly prejudicial if mentioned at trial and would be so damaging that, once the jury hears it, a sustained objection at trial will not be sufficient to undo its prejudicial impact. Motions in limine do not, and should not, ask the trial judge to rule on each and every possible matter of evidence that may be introduced during the trial. The attorney wanting to exclude evidence should also consider the possible disadvantages of bringing a motion in limine before the trial judge. For example, the attorney may not be sure that the evidence will be offered at trial. Here, the attorney faces a dilemma because if the motion is filed, he or she may alert the adversary to damaging evidence that the adversary had not considered previously. However, if the objecting party waits until trial to seek exclusion, the chances of a favorable evidentiary ruling may be diminished. In some cases, the attorney might decide that the danger of tipping off the adversary outweighs the value of a pretrial motion in limine

10 TRIAL 12.2 There are two generally recognized forms of motions in limine: (a) prohibitive-absolute; and (b) prohibitive-preliminary. With a prohibitive-absolute motion, the movant seeks a preliminary ruling that certain evidence is admissible or inadmissible. With a prohibitive-preliminary motion, the movant seeks a prophylactic order that the adversary can offer particular evidence only after he or she informs the trial judge of such intent outside the jury s presence. Most courts require that motions in limine be in writing. Therefore, it is important to know in advance what the court requires and to be prepared. When feasible, motions in limine should be in writing with a supporting brief, to properly preserve the record on appeal. Motions in limine can be made orally. As a practical matter, oral motions in limine generally arise at the final pretrial conference or during the course of trial. Whether and when to file a motion in limine are important strategic decisions. Each case is unique, and the trial attorney must carefully analyze all the benefits and risks of filing The decision involves the weighing of certain well-defined advantages and disadvantages. When it is anticipated that there will be an offer of objectionable evidence, the attorney can file a motion in limine or await the offer of evidence and object. If the attorney is sure that the evidence will be offered, the motion in limine may present certain advantages. For example, a question asked may be prejudicial even if an objection to the question is sustained; therefore, a motion in limine made outside the presence of the jury may avoid that prejudicial effect if the court agrees that the matter is inadmissible. If the attorney waits until the evidence is offered at trial, the judge ordinarily must make an immediate decision about admissibility. In this situation, the trial judge might lack the opportunity to fully consider the arguments and legal authorities supporting the objection. By filing a pretrial motion and brief, the attorney seeking exclusion can assist the judge in making an informed ruling. One of the principal purposes of motions in limine is to allow the trial judge ample opportunity to consider the reasons for exclusion of the evidence and review the caselaw. Thus, if one is going to file such a motion, he or she should generally do so well before the trial date to give the judge as much time as possible to fully consider the matter and the argument. In addition, an early motion in limine may accelerate the ruling, which could serve to limit the adversary s discovery rights. This benefit is lost when the motion is filed on the eve of trial. If permissible under the court s rules and orders, the movant may prefer to postpone the filing of a motion in limine. For example, on occasion, one may seek to exclude evidence to undermine the structure and presentation of the adversary s case. In this situation, an early ruling may give the adversary sufficient time to adapt its case if the evidence at issue is excluded. Early motions in limine also may be considered premature. The attorney may want to defer the motion to avoid this risk. Finally, early filing of a motion may not be feasible. For example, the opposing counsel might not reveal the intention to use certain evidence in its argument until late in the pretrial process. Indeed, the adversary s intention may not be known until the trial itself. In this situation, the objecting party does not have the option of filing an early motion in limine. ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 9