Our panel of leading appellate attorneys reviews the 10 Illinois Supreme Court opinions handed down Thursday, November 18. 

People v. Brand, 2021 IL 125945

By Kerry J. Bryson, Office of the State Appellate Defender

Crosetti Brand was charged with home invasion, aggravated domestic battery, and possession of a stolen motor vehicle stemming from an incident at his ex-girlfriend’s apartment. At trial, the ex-girlfriend (Shannon) and her son testified that Brand pushed his way into their apartment, pushed and choked Shannon, pointed a gun at them, and then fled in Shannon’s car. 

Over a defense objection, Shannon also testified regarding two messages she received on Facebook Messenger, one a few days after the incident and another a couple of weeks later. The messages came from an alias, Masetti Meech, which defendant had previously used to communicate with Shannon via Messenger. Shannon testified that she deleted the first message, which told her where she could locate her car. Shannon produced a photograph of the second message, which read:

This is just the beginning. Only if you know what’s lined up for your people as well. 79, 37, 71st, 39, 42, workplace, 79 is today. I’m coming in from back way. See your brother and OG. Bullets don’t have name on them. I will see you soon. I love the waiting game. I pared up and watch and wait. Your son not going to see 16. I see him at school.

Shannon testified that the numbers in that message referred to addresses where she and her relatives lived and worked.

The primary issue before the Supreme Court was whether the trial court erred in admitting evidence of the content of the Facebook messages. Brand argued that social media presents unique authentication problems because of the potential for hacking or otherwise gaining unauthorized access to an account and the ease with which fraudulent accounts can be created. Brand suggested that the foundational requirements for digital messages include proof that the purported sender (1) actually controlled the account used and (2) actually send the message. The State, on the other hand, argued that digital messages should be subject to the same authentication standards as any other documentary evidence.

The Illinois Rules of Evidence provide that authentication is a condition precedent to admission of evidence and is satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Court noted that Rule 901 includes examples of authentication, one of which is “distinctive characteristics and the like.” That example encompasses such things as appearance, contents, substance, internal patterns, or other distinctive characteristics “including those that apply to the source of an electronic communication.” While the specific reference to electronic communication was added after Brand’s trial, the Court concluded that it merely clarified what was already implicit.

A message sent via Facebook Messenger is admissible as documentary evidence and subject to the same foundational requirements, despite its digital nature. Here, the messages were properly authenticated by Shannon’s testimony that Brand had used the same alias to communicate with her via Messenger while they were dating, the first message contained accurate information about the location of Shannon’s vehicle which Shannon said Brand had taken on the night of the incident, and the second message contained unique information known only to a small group of people (specifically, the streets on which Shannon and her relatives lived and worked, as well as the age of Shannon’s son). Thus, the distinctive content of the messages were sufficient to provide an adequate foundation for their admission under the circumstances presented here.

Brand also challenged the sufficiency of the evidence on the count of possession of a stolen or converted motor vehicle, arguing that the State failed to prove an intent to permanently deprive Shannon of her vehicle. The State argued that it was only required to prove that Brand knew that the car was converted when it was in his possession, that is that he took unauthorized control of it temporarily. Ultimately, the Court engaged in a straightfoward reasonable doubt analysis and found that under either standard, the evidence was sufficient.

People v. Eubanks, 2021 IL 126271

By Jay Wiegman, Assistant Appellate Defender

Supreme Court Rule 402(f) provides as follows:
“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 

In People v. Eubanks, 2021 IL 126271, the defendant who, as part of an agreement with the prosecutor, had given a detailed statement confessing to first degree murder and aggravated battery in exchange for a 35-year sentence, withdrew his guilty plea and was then convicted following a stipulated bench trial, at which his statement was presented to the court. On direct appeal of his conviction and 25-year sentence, the defendant argued, for the first time, that his confession was barred by Rule 402(f). Acknowledging that the issue had been forfeited, the defendant asked the Appellate Court to excuse the forfeiture as plain error because counsel had been ineffective for failing to raise the issue. A majority of the Appellate Court, Third District, found that the ineffective assistance claim involved factual matters outside of the record, and recommended that the defendant raise the issue in a post-conviction petition.

In an amended post-conviction petition, the defendant, through counsel, argued that his videorecorded statement was inadmissible under Rule 402(f) because it was given “during plea negotiations” and counsel was ineffective for failing to raise this issue instead of challenging the admission on contract principles. The circuit court denied the defendant’s petition after finding that Rule 402(f) was not violated because the confession “was not part of the plea discussion, but rather the result of the plea agreement.” In dissent, Justice McDade objected as a matter of policy, believing that the majority’s holding would encourage gamesmanship on the part of the State, which might be inclined to time a defendant’s confession until after he had agreed to a plea deal but before the court accepted the plea or entered judgment on it.

On appeal to the Supreme Court, then, the defendant argued: 1) his videotaped statement to detectives was not admissible under Rule 402(f) because it was part of the negotiation process; and 2) even were the statement made after a plea deal had been reached, the statement should still be admissible for policy reasons.

Writing for a unanimous Court (with Justice Carter taking no part in the consideration or decision of the case), Justice Burke observed that while the Court has had several occasions to consider fact patterns involving defendants’ statements “falling on either side of the commencement of the negotiating process for plea bargaining,” the Court had not previously considered a case involving a statement made after bargaining had been completed and a deal had been reached. In particular, the Court relied upon a Second District decision, People v. Saunders, 135 Ill. 2d 594 (2d Dist. 1985), which discussed several federal cases and concluded that statements made after a plea agreement has been reached but before a defendant has pled guilty are admissible. Justice Burke wrote that the “construction rendered by these courts is not only consistent with the plain language of Rule 402(f) but also with its purpose, which ‘is to encourage the negotiated disposition of criminal cases through the elimination of the risk that the accused enter plea discussions at his peril,” and noted that this goal is “accomplished by excluding statements made during the negotiation process.” Once the negotiations are complete, there is nothing more for the Rule to encourage. Because the defendant’s statement was not part of the discussions but was instead the result of the discussions, his statement was admissible.

In reaching its decision, the Court rejected defendant’s argument that he had valid reasons for withdrawing his plea given the concern that the factual basis provided by the prosecutor included the fact that a firearm was discharged, which is a basis for a mandatory sentencing enhancement. The Court noted that in People v. White, 2011 IL 109616, Justice Theis, in a special concurrence “left the door open for precisely this kind of agreement,” when Justice Theis observed that White implicitly allows prosecutors to negotiate around the mandatory firearm enhancements by amending the indictment and presenting a proper factual basis; as a result, the deal offered to the defendant was not void.  

Easterday v. The Village of Deerfield , 2021 IL 126840

By Amelia Buragas, J.D. 

In Easterday v. The Village of Deerfield, 2021 IL 126840, a divided Illinois Supreme Court was unable to reach the constitutionally required four justice majority to issue a decision and, as a result, issued a per curiam opinion. The effect of the per curiam opinion is the same as if the decision under review had been affirmed, but with no precedential value. As a result, absent any additional proceedings at the trial or appellate courts, the Village of Deerfield will be able to enforce its ban on large-capacity magazines and assault weapons.

The Village of Deerfield first took action to regulate assault weapons in 2013 when the Illinois Legislature created a narrow window of opportunity through the passage of the Firearm Concealed Carry Act. Deerfield did not ban assault weapons at that time, but rather passed an ordinance regulating their storage and transportation. Five years later, in response to several high-profile mass shootings across the nation, Deerfield enacted a total civilian ban on assault weapons and large-capacity magazines. This was accomplished through the passage of two ordinances that amended the 2013 ordinance. Plaintiffs, in consolidated lawsuits, challenged the validity of Deerfield’s ban. The trial court granted summary judgment in favor of plaintiffs and issued permanent injunctions against enforcement of the bans by finding that the bans on assault weapons and large-capacity magazines were preempted by section 13.1 of the FOID Card Act and section 90 of the Concealed Carry Act. However, the trial court also found that a genuine issue of material fact precluded summary judgment on the plaintiff’s claim that the ordinances were impermissible “takings.” After further proceedings, including a finding by the appellate court that it lacked jurisdiction to consider a direct appeal filed by Deerfield challenging the permanent injunction, the trial court made findings pursuant to Supreme Court Rule 304(a) and the matter returned to the appellate court in Easterday v. The Village of Deerfield, 2020 IL App (2d) 190879.

The appellate court concluded that the legislature had created a time-limited opportunity for home rule units to concurrently regulate assault weapons. While the legislature had given municipalities just 10 days to implement local regulations, Deerfield had “preserved its power to regulate assault weapons concurrently with the State” through the passage of the 2013 ordinance within the prescribed time frame. The appellate court found that the 2018 ordinances were permissible amendments to the earlier ordinance relating to the storage and transportation of assault weapons. However, the appellate court also found that the ban on high-capacity magazines was preempted to the extent that it also could be applied to handguns. Thus, the appellate court reversed in part and affirmed in part the trial court order, vacated portions of the trial court’s permanent injunctions, and remanded the cause to the trial court for further proceedings on certain issues, including the plaintiff’s argument that the ordinances were preempted by the Wildlife Code on the basis that those issues were not properly before it based on the trial court’s Rule 304(a) findings. The Illinois Supreme Court granted the plaintiff's petition for leave to appeal; however, with the recusal of Justice Michael J. Burke and a split among the remaining justices the court could not obtain the four justices required by Article VI, Section 3 of the Illinois State Constitution and the court issued a per curiam opinion.

Ittersagen v. Advocate Health and Hospitals Corproration, 2021 IL 126507

By Amelia Buragas, J.D.

In Ittersagen v. Advocate Health and Hospitals Corporation, 2021 IL 126507, the Illinois Supreme Court considered whether the business relationship of a juror constituted one of the rare situations where a presumption of juror bias cannot be rebutted by the juror’s claims of impartiality. While the court limited its holding to the “unique circumstances presented,” the opinion nonetheless provides guidance on the legal analysis and standards of review used by the courts when considering claims of actual or implied juror bias.

Plaintiff Thomas Ittersagen sued the defendants, including Advocate Health and Hospitals Corporation, for medical malpractice and the case proceeded to a jury trial. More than halfway through the trial, the judge received a note from a juror reporting he had a business relationship with an entity he referred to as “Advocate Health Care System Endowment.” The juror explained that he had forgotten to mention the relationship earlier because any connection to the defendant was “several layers removed.” The juror insisted he could remain fair and impartial because his relationship with the endowment was attenuated and the outcome of the trial would not affect him financially. The plaintiff moved for the removal of the juror. The trial court denied the request and the jury ultimately returned a verdict in favor of the defendants. Plaintiff appealed, arguing that the juror’s relationship with the endowment created a presumption of bias that could not be rebutted by the juror’s claims of impartiality. The appellate court affirmed, and the Supreme Court granted the plaintiff’s petition for leave to appeal.

On review, the Supreme Court clarified the standards of review appliable to claims of actual and implied juror bias. The court explained that a determination of actual bias is not wholly objective and, as a result, the trial court’s determination should not be set aside unless it is against the manifest weight of the evidence. On the other hand, the determination of whether a juror’s relationship with a party or other trial participant supports a presumption of implied bias is a question of law that is reviewed de novo. However, regardless of whether a party objects on the basis of actual or implied bias the nature of the juror’s relationship to the parties is a question of fact. Thus, the trial court’s findings regarding that relationship should not be reversed unless they are against the manifest weight of the evidence. In summary, “presuming bias based on a juror’s status is a question of law but determining the juror’s status remains a question of fact.”

The Supreme Court next considered the relationship between the juror and the defendant. The court noted that the evidence considered by the trial court was limited to a midtrial colloquy between the trial judge, the attorneys, and the juror and that the judge heard “disorganized and imprecise testimony concerning the juror’s connection to the defendants.” Ultimately, the trial court found the plaintiff failed to meet his burden of showing bias by failing to demonstrate that the juror had a direct relationship with the defendant from which bias could be presumed. The Supreme Court held that this was not against the manifest weight of the evidence. And, since implied bias cannot exist in the absence of a direct relationship between the juror and the defendant, the trial court did not err when it denied the plaintiffs’ motion to replace the juror on the basis of implied bias. Plaintiff had sought to bolster his argument by requesting that the appellate court take judicial notice of a tax document purporting to show a direct relationship between the endowment and the defendant (a conclusion disputed by the defendant). However, both the appellate and supreme court found the consideration of the document was not timely and was forfeited. The Supreme Court also admonished the plaintiff for failing to comply with Supreme Court Rule 341(h) and reminded parties that Illinois Supreme Court rules “have the force of law and must be followed.”

Doe v. Beau Parrillo, 2021 IL 126577

By Michael T. Reagan, Law Offices of Michael T. Reagan

The proceedings in the trial court, the circuit and appellate courts’ characterization of the actions of defendant and his counsel, and the Supreme Court’s detailed exposition of the methodology of review of punitive damage awards will all have long resonance, each for different reasons. Justice Theis wrote for a unanimous court, with Chief Justice Anne Burke and Justice Neville not participating.

In her five count complaint, plaintiff alleged that over a six month period, in her residence and at several hotels, defendant had offensive physical contact with her, struck her, restrained her with force and violence, and sexually assaulted and raped her, and on the last occasion in violation of an order of protection.  When the case was called for trial, defense counsel made several ineffectual attempts at obtaining a continuance.  As one aspect of a request for continuance, defendant filed an affidavit that he was in Florida to attend to his ailing father, but later admitted that that was not true.  The case went to jury trial without the participation of defense counsel, although they came into the court room at several points. There was no court reporter. The jury returned a verdict of $1 million in compensatory damages, $8 million in punitive damages. 

Turning briefly to the Supreme Court opinion, the court quoted several aspects of Judge Varga’s disposition of the post-judgment motion.  He characterized the defense’s conduct as “the most audacious attempt to undermine the judicial process which this Court has seen in over twenty-four years.” Then:  “In conclusion the title of defendant’s attempt should read, ‘A Conspiracy to Undermine the Integrity of the Judicial Process—or—How Not to Get a Trial Continuance in the Law Division.’ First, lie; second, don’t follow rules; and third, if the first and second don’t work, don’t show up for trial.” 

The appellate court opinion, Justice Hyman writing for the court, began with a first paragraph constructed with the rhetorical technique of antithesis in parallel with the first sentence of A Tale of Two Cities. “In every matter an attorney makes a countless number of choices: Some tactical and some inconsequential,…some deliberative and well-informed and some hasty and ill-informed…Counsel for defendant chose to let the jury trial proceed without their participation or a court reporter.In cases like this case, we do not serve as a safety net for bad choices.”  The appellate court affirmed the judgment for compensatory damages, but reduced the punitive award to $1 million.

Plaintiff appealed to the Supreme Court; defendant sought cross-relief. Justice Theis’ first sentence stated that “the central issue in this case is whether the appellate court erred in reducing the punitive damages awarded…” The court reinstated the entirety of the verdict. The opinion stated that the conduct of the case required an “extended description,” which occupies the first 16 pages. The court stated that “Parrillo’s argument regarding punitive damages is almost incomprehensible, amounting to little more than untethered quotes and a preview of his cross-appeal.” The court stated that review of punitive damages can proceed either under the common law or under constitutional principles.  The court usefully laid out the chronological development of the constitutional parameters of punitive damages, and stated that such a review is de novo. After documenting the principle that reprehensibility is the most important factor because it relates to the “enormity” of the defendant’s misconduct, the court stated that the conduct here involved threats of both physical and mortal harm, and that “the violence was recurring.”  

Addressing the ratio of punitive to compensatory damages, the court stated that where the conduct is particularly egregious and arises from a physical assault or injury, a greater ratio is appropriate. The eight to one ratio here, while high, “is still a single-digit multiplier.” A recurrent theme throughout the opinion is the lack of a transcript, an appellant’s responsibility. “There is no trial transcript, so we do not know what Doe told the jury.  We do know what she alleged, and we know how she looked after one of Parrillo’s attacks.” The court concluded that the punitive damages could not be said to be so unreasonable as to violate due process.

The court closed this analysis by quoting the requirement in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S.408 (2003) that there be “exacting appellate review” of a punitive damage award. 

Turning to the cross-relief requested by defendant, none of the points survived the absence of a transcript.

Brown v. The Illinois State Police, 2021 IL 126153   

By Michael T. Reagan, Law Offices of Michael T. Reagan

What would appear at first blush to be a straightforward determination of whether the revocation of a Firearm Owner’s Identification card should be reversed in fact presents an intricate, dynamic meshing of the Illinois Firearm Identification Act, the federal Gun Control Act, constitutional rights under the Second Amendment, Illinois case law, and choice of law principles.

 These  complete interactions can only be sketched here.  In short overview, the revocation of Mr. Brown’s FOID card, which had been reversed by the circuit court, but affirmed by the appellate court, was ultimately reversed by the supreme court.  Justice Overstreet wrote for a unanimous court, with Justice Carter not participating.  The opinion of the supreme court aligns with Justice Holdridge’s dissent below.

Brown had pled guilty  to a misdemeanor of inflicting corporal injury to his spouse in California, following disagreement with his now-former spouse after time spent at a bar.  Mr. Brown testified “there was a little bit of an argument going on, I picked her up and was carrying her, and it was kind of a playful moment … and she kind of lost my balance.  She kind of fell off onto the ground.”  His former spouse submitted a letter in the circuit court evidentiary hearing that “I was not injured, nor do I believe that there was any intent by (him) to cause injury to me.”  Twelve years after his guilty plea in California, Brown submitted a renewal FOID card application to the ISP, answering that he had not been convicted of domestic battery or a substantially similar offense.  Three years later, when he attempted to purchase a firearm, a background check revealed the California conviction, which led to the revocation of his Illinois FOID card.

The federal Gun Control Act forbids a person from possessing firearms if he has been convicted of a misdemeanor crime of domestic violence (MCDV).  The FOID Card Act empowers a circuit court to grant relief to a petitioner whose card has been revoked if four requirements are met, the last of which is that granting relief “would not be contrary to federal law.”  The federal Gun Control Act makes it unlawful for any person to possess a firearm if he has been convicted of a MCDV.  This case then turned upon, in large part, whether Brown satisfied an exception to that  prohibition contained in the federal Gun Control Act which applies if a person “has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”  Narrowing it further, the court had to examine whether the exception to the prohibition applied by Brown having his “civil rights restored.”  California law automatically allowed misdemeanants to possess firearms ten years after the conviction.  Brown contended that that enabled him to meet the “civil rights restored” exception to the prohibition.  But the ISP contended that Brown’s civil rights were neither revoked nor restored, and that California law obtained.  

The court disagreed with the ISP, and turned to its own opinion in Johnson v. Dept. of State Police, 2020 IL 124213.  The court there held that restoration of firearm rights under the FOID Card Act constitutes “civil rights restored” for purposes of federal law.  Johnson expanded an earlier understanding of “civil rights” to now include the right to possess firearms as a result of District of Columbia v. Heller, 554 U.S. 570 (2008).  The court concluded that Brown both lost his right to possess firearms under California law and  that his civil rights in that regard were automatically restored by virtue of California law ten years after his conviction.  The ISP persisted, arguing that California law constituted only forbearance against prosecution, and not forgiveness.  The court noted that “California law does not apply to Brown in a vacuum,” and that “as an Illinois citizen, Brown is subject to this Court’s holding in Johnson that restoration of firearm rights … constitutes ‘civil rights restored’ for purposes of federal law.”  

The judgment of the circuit court of Putnam County directing the ISP to issue a FOID card was affirmed.

In re Marriage of Dahm-Schell, 2021 IL 126802

By Joanne R. Driscoll, Forde & O’Meara LLP

The modified certified question before the court was whether mandatory distributions or withdrawals taken from an inherited individual retirement account (IRA) containing money that had not been imputed against the recipient for the purposes of maintenance and child support calculations constitute “income” under sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(b-3), 505(a)(3) (West 2018)). In a unanimous opinion authored by Justice Neville, with Justice Overstreet not participating, the court answered the question in the affirmative. 

While the divorce action was pending, the husband inherited approximately $615,000, the majority of which was being held in two IRAs. He received $462.33 per month in dividends from the inherited IRAs that he reinvested in his own retirement account. The circuit court did not include those dividends as part of the husband’s income for purposes of determining child support and maintenance but certified the question for review. The appellate court reversed.

Examining the meaning of the terms “gross income” and “net income” in the maintenance and child support provisions of the Act, respectively, the supreme court noted that each had similar and expansive meaning and included any gain or benefit received. Tax consequences, such as requirements to take minimum distributions or withdrawals from IRAs, are irrelevant to the inquiry of income.

The court went on to clarify its holding in In re Marriage of McGrath, 2012 IL 112792, stating that the liquidation of an asset awarded in a marriage dissolution judgment is not income if the asset has been previously imputed to the party for maintenance and support purposes. Id. ¶ 18. Here, unlike in McGrath, because the husband’s inheritance was never included in the initial calculations of his support obligations, including the mandatory distributions and withdrawals in calculating his support obligations was permissible and did not constitute double counting. 

The court also rejected the husband’s argument that “income” does not include nonmarital mandatory distributions and withdrawals that are reinvested into a personal retirement account. Citing In re Marriage of Mayfield, 2013 IL 114655, ¶ 18, the court stated that income earned subsequent to the dissolution of a marriage, i.e., nonmarital, should be considered for the purpose of support calculations. 

The court made clear that all income must be taken into consideration when setting support, but income may be considered only once when doing so.

In re Marriage of Dynako, 2021 IL 126835

By Joanne R. Driscoll, Forde & O’Meara LLP

The sole issue in this appeal was whether the maintenance obligation in a marital settlement agreement was modifiable under section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/502(f) (West 2016)). The appellate court and the circuit court concluded that it was not modifiable, and the supreme court agreed.

The marital settlement agreement at issue required the husband to make maintenance payments for a set number of years and expressly stated that those payments “shall be nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” After the husband’s financial situation changed, he sought to modify his maintenance obligations, contending that they were modifiable because the marital settlement agreement did not specifically provide, as required by section 502(f) of the Marriage Act, “that the non-modifiability applies to amount, duration, or both.”

In a unanimous opinion, authored by Justice Theis, the court began its analysis by interpreting section 502(f) of the Marital Act, which provided, in part, that “[i]f the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances.” According to the court, this language plainly provides that parties may agree (1) that maintenance is nonmodifiable in amount, (2) that maintenance is nonmodifiable in duration, or (3) that maintenance is nonmodifiable in both amount and duration. Parties can make maintenance entirely nonmodifiable or select a single aspect of the obligation to make nonmodifiable.

Here, the language of the marital settlement agreement demonstrated an intent to make the maintenance obligation nonmodifiable in both amount and duration, and that obligation could not be avoided by a showing of changed circumstances.
 

Bailey v. Mercy Hospital and Medical Center, 2021 IL 126748 

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The fate of the judgment in this medical malpractice case depended on the reviewing courts’ views of the jury instructions regarding proximate causation and informed consent. Finding that the trial court properly instructed the jury on these topics, the Illinois Supreme Court reversed the appellate court’s decision to award plaintiff a new trial and reinstated the defense judgment.

The lawsuit arose from medical care provided to plaintiff’s decedent in the emergency department of Mercy Hospital and Medical Center, where the patient was treated by a physician believing the patient, who complained of abdominal pain and other symptoms, was ill from viral gastroenteritis (stomach flu). After evaluation, testing and treatment, a physician, concerned with the patient’s persistent elevated heart rate, advised the patient that a serious condition might be involved, and recommended that the patient be admitted for observation and further testing. The patient decided to leave the hospital but returned later that day, in the evening. Following further testing and evaluation, the patient was transferred from the emergency department to an observation unit early the next morning. The patient went into cardiopulmonary arrest and passed away that day. 

The representative of the patient’s estate sued the treating caregivers and the hospital. The case proceeded to trial on plaintiff’s theory that the patient died from an untreated bacterial infection resulting in sepsis, which could have been treated with antibiotics had the defendants timely diagnosed the condition. Defendants countered that the patient died from a condition that could not be treated with antibiotics and that her symptoms at the hospital were consistent with the diagnosis of a viral illness. The jury returned a verdict for all of the defendants. 

Plaintiff obtained a new trial on appeal. Departing from several appellate decisions, the appellate court concluded that the trial court denied plaintiff a fair trial by refusing plaintiff’s “loss of chance” nonpattern jury instruction and instructing the jury with the pattern instruction on proximate causation. The appellate court also found fault with the trial court’s refusal of a pattern informed consent jury instruction. 

The supreme court disagreed. Its seminal decision on the “lost chance” theory in medical malpractice cases, Holton v. Memorial Hospital, led the court to conclude that a separate non-pattern jury instruction on loss of chance was not needed to accurately instruct the jury on proximate cause principles. 179 Ill. 2d 95 (1997). The Holton court had recognized the “lost chance” doctrine and explained that it is a concept entering into the proximate cause analysis in medical malpractice cases where a defendant’s negligent delay in diagnosis or treatment reduces the effectiveness of treatment; however, the doctrine is not a separate theory of recovery. In Holton, the court held that the doctrine does not require relaxing longstanding proximate cause standards. The supreme court adhered to Holton: the lost chance doctrine comports with traditional rules requiring a plaintiff to prove that a defendant’s negligence “more probably than not” caused the alleged injury; consequently, IPI Civil No. 15.01 properly states the law and sufficiently instructs a jury in lost chance medical malpractice cases. The court cited with approval several decisions of the appellate court concluding that a trial court does not deny a plaintiff a fair trial by refusing a non-pattern jury instruction articulating the loss of chance doctrine. 

The supreme court also determined that the appellate court erred in concluding that the circuit court’s refusal of the plaintiff’s informed consent instruction modeled on the pattern instruction required a new trial. The court found that the issues instruction included a provision adequately informing the jury of plaintiff’s claim that one of the physicians failed to warn the patient of the risks of leaving the hospital. Determining that plaintiff failed to allege or present evidence on two essential elements of an informed consent claim—that the patient consented to medical treatment without adequate information and that the patient was injured as a result of the proposed treatment—the supreme court found no error in the circuit court’s refusal of plaintiff’s instruction. In the supreme court’s view, plaintiff argued that defendants failed to perform additional medical treatment before the patient left the hospital, “an inverse theory of informed consent” advanced without citation to authority recognizing this type of informed consent claim.
 

In re Commitment of Warren C. Snapp, Sr., 2021 IL 126176

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court addressed the findings required for commitment under the current version of the Sexually Dangerous Persons Act (“Act”), 725 ILCS 205/0.01 et seq. (West 2014). In People v. Masterson, 207 Ill. 2d 305 (2003), the supreme court interpreted a prior version of the Act to require an explicit finding that, if not confined, the respondent is “substantially probable to commit sex offenses in the future.” A 2013 amendment of the Act incorporated this finding in the definition of a “sexually violent person,” and made the separate express finding unnecessary.

The issue arose in the context of an individual who had pleaded guilty to sex offenses in 1973 and 1992. In 1997, the respondent again faced charges of aggravated criminal sexual abuse, and on the State’s petition, was committed under the Act. The Act permits release from civil commitments on application. In the most recent of the respondent’s several unsuccessful applications for release, in 2018, a clinical psychologist testified at trial that the respondent remained a sexually dangerous person based on the psychologist’s findings that the respondent’s probability of reoffending was “three to four times the rate of the average sex offender.” Identifying additional risk factors presented by respondent, the psychologist testified that, if not confined, the respondent is “substantially probable to reoffend.” Given the evidence, the circuit court, which served as the factfinder after the respondent waived a jury trial, found he remained a sexually dangerous person in need of confinement and denied the application.

On appeal, respondent argued that the Masterson decision required an explicit, separate finding by the court that respondent was substantially probable to offend if not confined. Alternatively, respondent argued that the decision denying his application was against the manifest weight of the evidence. The appellate court agreed with respondent’s argument under Masterson, and remanded the matter for a full rehearing.  

In the supreme court, the respondent acknowledged the state was “likely correct” in arguing that a 2013 amendment of the Act obviated Masterson. In that case, the supreme court considered whether the Act violated a respondent’s constitutional right to due process. The version of the Act then in effect did not specifically address the probability or likelihood that the subject of commitment would engage in sex offenses in the future. The prior statutory language was deemed “a matter of legislative oversight” in that the statute defined “sexually dangerous persons” as an individual “with criminal propensities to the commission of sex offenses, and who [has] demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children” rather than incorporating the exact phrase “substantial probability to reoffend.” Because the prior version of the statute expressed “dangerousness and lack of control” as “touchstones for civil commitment,” In Masterson, the supreme court found the absence of substantial probability language “a matter of legislative oversight.” 

An amendment of the statute encompasses within the definition of a sexually dangerous person the finding that, if not confined, the individual is substantially probable to commit sex offenses in the future. Accordingly, because the appellate court had erroneously interpreted the current version of the statute to continue to require a separate, explicit finding of a substantial probability to reoffend, the supreme court reversed the appellate court’s judgment ordering a rehearing in the circuit court and remanded the case to the appellate court to consider respondent’s alternative arguments.