ELGIN, Ill. (Legal Newsline) – Attorneys representing a health care provider went too far during closing arguments, and an Illinois man will get a second chance to prove it is liable for his injuries.
The Second District of the Illinois Appellate Court ruled Dec. 7 that lawyers representing Advocate Good Samaritan Hospital played to the jury’s emotions in an improper fashion and ordered a retrial.
Those lawyers, of the Chicago firm Johnson & Bell, told jurors it would take nurse Lisa Begler years to earn the amount of money in damages requested by plaintiff Michael Konewko. But Begler wasn’t a defendant – only the hospital was.
DuPage County Circuit Judge David Schwartz found the comments, part of a 45-minute closing argument after a nine-day trial, were appropriate because Begler is an agent of Advocate. The appeals court said that isn’t the case.
“(W)e think it matters not whether the comments refer to a party or the party’s agent, but whether the comments prejudice the jury in favor of or against a party,” Justice Ann Jorgensen wrote.
“To hold otherwise would be to allow an attorney to make any number of improper, inflammatory remarks, perhaps in contravention of motion in limine orders, or at least the underlying purpose of those orders, and be excused merely because the comments pertained to a party’s agent and not the party itself.
“This position would lead to gamesmanship, allowing an attorney to subvert the purpose of a motion in limine order, and opportunism, as a party’s agent might be more relatable, more human, and therefore more sympathetic than the party itself.”
Konewko had back surgery in 2010 at Advocate and experienced leg weakness. Begler was helping him get on a toilet when his legs gave out on him, causing him to slam onto the toilet.
His legs continued to weaken, and a second surgery to remove a screw that was possibly pressing on his nerves helped him regain his leg strength.
At a rehabilitation clinic where, the opinion says, he had to learn to walk again, he suffered a blood clot and infection that led to a third surgery.
His subsequent lawsuit against Advocate argued Begler should have used a walker or other assistive device to get him to the bathroom or had a second person help. The opinion says his activity is still compromised by the effects of his ordeal.
The jury ruled for Advocate but, as the appeals court noted, appeared to be concerned with Begler’s well-being after Advocate’s lawyers had brought her up during closing arguments. Jurors asked if it could find that she was not negligent but still have Advocate pay Konewko.
“We are not persuaded by Advocate’s point raised at oral argument that several of the improper comments did not refer to Begler by name, but referred only to nurses in general,” Justice Jorgensen wrote.
“There was only one nurse in the room with Konewko at the time of the commode incident. Begler was the face of Advocate for the purposes of this case. Again, by pointing to Begler, Advocate accessed a figure that was more human, more relatable, and more sympathetic than it could ever portray itself, a business entity, as being.”