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Improper Remarks During Closing Argument Reverse Defense Verdict

December 17, 2020
Health Care Alert

This alert was featured in Hinshaw's Annual Guide to Illinois Medical Malpractice Decisions: 2020 Edition

Issue

Can comments intended to inflame the passions of the jury, even if directed at a non-party, result in error?

Michael Konewko v. Advocate Health and Hospitals Corporation d/b/a Advocate Good Samaritan Hospital 2020 IL App (2d) 190684

Case Summary

Michael Konewko, then age 57, underwent a laminectomy and removal of a synovial cyst at Advocate in October 2010. Following surgery he experienced increased leg weakness. While still an inpatient, he was assisted by Nurse Begler to the commode which involved an uncontrolled descent, after which his leg weakness increased to the point of feeling "dead." Konewko later underwent two additional surgeries, suffered a DVT and infection, underwent rehabilitation, but eventually regained 4+ out of 5 strength in the leg. Plaintiff filed suit against Advocate on the theory that its agent, Nurse Begler, was negligent in assisting with the transfer to the commode. Advocate defended the case in part on the theory that the surgery, and not the transfer, caused the patient's symptoms of leg weakness. Pre-trial rulings prohibited any reference to the relative wealth or poverty of any party, or to ask the jury to put itself in the position of any party.

During closing argument, plaintiff's counsel explained to the jury "[Y]our verdict must not be based on speculation, prejudice, or sympathy. The concept of empathy, on the other hand, is a little different, and the concept of empathy and understanding what somebody has gone through can certainly play a role in this case." Counsel for plaintiff also accused Nurse Begler of lying about plaintiff's use of a walker since she had not documented it and stated "Careful and meticulous, question mark. Doubt it, exclamation point." Plaintiff asked the jury for $762,591, for medical bills, pain and suffering, and loss of a normal life.

During the hospital's closing argument, defense counsel made the following statements:

The jury returned a verdict for the defendant hospital and returned an answer of "no" to the following special interrogatory: "Before and at the time of the commode incident was the nursing and/or physical therapy staff of Defendant Advocate Good Samaritan Hospital negligent?" As a result, the court denied plaintiff's post-trial motion and an appeal followed.

On appeal, the Konewko Court began its analysis of the closing argument by identifying numerous instances in which statements made during closing argument improperly attempted to appeal to the jury's sympathy and/or inject improper elements into the case, such as: asking the jury to put itself in the position of a plaintiff or a defendant, referring to a party's financial position, directing a jury's attention to the effect of an adverse verdict upon a defendant's professional reputation, and suggesting that a defendant will be personally responsible for the satisfaction of a money judgment. The appellate court also reviewed prior decisions establishing that, while the trial court can cure an improper comment by sustaining the objection and instructing the jury to disregard the comment, when the comment was repeated or made in violation of prior court orders, sustaining the objection may be insufficient. The appellate court also noted that in cases where the evidence is close, such that a jury might reasonably return a verdict for either party, the attorney's improper comments might warrant a reversal.

The appellate court concluded that counsel's comment about the reputation of the nurse was improper and injected an improper element into the case by inviting the jury to consider whether Nurse Begler, a sympathetic witness and a dedicated nurse, deserved a mark against her reputation. The court further reasoned that counsel's comments about the nurse's salary was improper because 1) it suggested that Nurse Begler would be personally responsible for a money judgment, 2) that it referred to her financial position, and 3) that it assumed facts not in evidence because Nurse Begler never testified to her salary or her net worth. The appellate court also found that counsel's comments about the amount of money the plaintiff's experts had made in the case raised the inference that plaintiff and his attorney had the resources to hire expert witnesses and that plaintiff had greater means to bear a loss. The court also factored into its analysis how closely contested the case was. Ultimately, the court reversed the verdict and remanded because the attorney made between four or five improper comments (as opposed to one or two that were sufficient to produce the same result in other cases), the repeated nature of the comments showed an intent to appeal to the sympathy of the jury, and the comments violated the in limine order of the trial court. The court also rejected defendant's argument that the comments, since made about an agent of the party and not the party itself, did not require reversal.

Takeaways

Appealing to the jury's emotions and injecting extraneous issues during closing argument risks undermining a favorable jury verdict and should be avoided. Both parties in this case made objectionable statements during closing argument, but this ruling reaffirms the old adage that retaliation is often punished more harshly than the original offense.

>> Return to Hinshaw's Annual Guide to Illinois Medical Malpractice Decisions: 2020 Edition