The Consequences Of Thorton v. Garcini: Setoff Must Be Raised In Pleadings
The Illinois Supreme Court's decision in Thornton v. Garcini, 2009 WL 3471065 (Ill. Oct. 29, 2009), unambiguously holds that expert testimony is not required to prove negligent infliction of emotional distress. Perhaps the more important aspect of the decision, however, is the manner in which the Illinois Supreme Court dealt with the issue of setoff, where some defendants settle prior to a final verdict.
On August 28, 2000, plaintiff Toni Thornton's premature infant partially delivered in a breech position. Defendant, Dr. Francisco Garcini, plaintiff's obstetrician, had been at home when plaintiff went into labor. After being informed of the partial delivery, Dr. Garcini took a shower before driving to the hospital. Meanwhile, the infant became entrapped at the neck. No doctors were present. The nurses where unable to complete the delivery, and the baby died. Plaintiff waited with the deceased baby partially delivered for over an hour, after which Dr. Garcini arrived and completed the delivery.
Plaintiff sued Dr. Garcini, the hospital, and the nurses, and included claims for wrongful death, survival, and intentional infliction of emotional distress. At trial, the jury found all the defendants not liable on the wrongful death and survival counts. The jury likewise returned a verdict of not liable on the intentional infliction of emotional distress count, with respect to Dr. Garcini and the nurses. However, the jury found the hospital liable for intentional infliction of emotional distress, and awarded plaintiff $175,000. Plaintiff filed post-trial motions against all defendants. During the pendancy of the post-trial motions, the hospital and the nurses entered into a settlement agreement with plaintiff. In exchange for payment of $175,000, plaintiff agreed to release the hospital and the nurses. Plaintiff's post-trial motion against Dr. Garcini was denied. Plaintiff appealed the trial court's judgment. The appellate court reversed and ordered a new trial.
At the second trial, plaintiff offered no expert testimony in support of her claim for emotional distress. Rather, Ms. Thornton and her family testified regarding her emotional distress during and after the delivery. Counts for wrongful death, survival, and negligent infliction of emotional distress were submitted to the jury. The jury found Dr. Garcini liable on only the negligent infliction of emotional distress count, and awarded plaintiff $700,000.
Dr. Garcini filed a post-trial motion seeking judgment notwithstanding the verdict. The trial court denied the post-trial motion, and the appellate court affirmed.
In his appeal to the Illinois Supreme Court, Dr. Garcini made three arguments. First, he argued that expert testimony was required to prove that Ms. Thornton's emotional distress was caused by the delay during the delivery. Second, Dr. Garcini argued that the "single-recovery rule" entitled him to judgment notwithstanding the verdict. In other words, because the jury at the first trial had already determined that Ms. Thornton's emotional injury had a value of $175,000, she could not recover any more than that amount, which she had already recovered. Third, Dr. Garcini argued that even if the court declined to find that the first verdict fixed the value of Ms. Thornton's emotional injury at $175,000, Dr. Garcini was still entitled to a setoff of $175,000.
The Court held that expert testimony is not required to establish emotional distress. In so holding, the Court rejected Dr. Garcini's argument that the language in Corgan v. Muehling, 143 Ill.2d 296 (1991), indicated otherwise, and overruled that part of Hiscott v. Peters, 324 Ill. App. 3d. 114 (2d Dist. 2001), requiring expert testimony to prove emotional distress. The Court reasoned that jurors could reasonably rely on their personal experiences alone in concluding that Ms. Thornton's experience caused severe emotional distress. The Court further reasoned that Ms. Thornton provided explicit testimony about the experience of having the deceased infant protrude from her body for over an hour. Under circumstances like these, the Court held, the nonexistence of medical testimony "goes to the weight of the evidence, but does not prevent the issue from being submitted to the jury."
Second, the Court held that Dr. Garcini waived his argument that the $175,000 awarded by the first verdict should set a limit on Ms. Thornton's recovery for her emotional injury. The court reasoned that Dr. Garcini's "single-recovery rule" argument first arose as soon as the first verdict was rendered. However, Dr. Garcini did not raise it at any time during the second trial, despite several opportunities. The court further reasoned: "[d]ue to defendant's failure to raise this issue before the entry of the verdict after the second trial, plaintiff had no notice or opportunity during the trial to defend against defendant's claim."
Finally, the Court held that Dr. Garcini had likewise waived his setoff argument. The Court again pointed to the fact that Dr. Garcini did not raise his argument that he was entitled to a setoff until his post-trial motion after the second trial. The Court, citing its decision in MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill.2d 560, 574-75 (2009), found that, with no counterclaim for setoff appearing in Dr. Garcini's pleadings, plaintiff had no "notice or opportunity to defend against the setoff claim until after the completion of the second trial."
1. The basic holding in the Thornton decision- that neither Corgan, nor any other part of Illinois law, requires expert testimony in emotional distress cases - is unequivocal. However, the holding leaves the door open slightly for the possibility that trial courts may require expert testimony in some cases, such as where the lay testimony does not explicitly establish a plaintiff's emotional distress, or its cause, as it did here. Moreover, it is important to note that in Thornton, the Supreme Court was reviewing the trial court's decision not to grant judgment notwithstanding the jury's verdict. The trial court could only have found for Dr. Garcini if the evidence "so overwhelmingly favored" him that "no contrary verdict could ever stand." A trial court would have more latitude to find in favor of defendant because of a lack of medical testimony if it were, instead, deciding a motion for summary judgment, where the standard is not so lopsided in the plaintiff's favor. Thus, while aware of Thornton's basic holding, defense counsel may attempt to distinguish Thornton before the trial court, in cases where the lay testimony is less compelling than it was in Thornton on the elements of severe emotional distress, or causation.
2. The Court's holding that Dr. Garcini waived his "single recovery rule" argument demonstrates that defense counsel must raise the issue often, and as soon as possible, where it appears that there may have already been a determination of the value of the plaintiff's injury. In this case, Dr. Garcini had a strong argument that the $175,000 Ms. Thornton received for her release of the hospital and the nurses fully compensated her for her emotional injury. After all, that was the exact amount of the first verdict, awarded, exclusively, for her emotional distress. Had Dr. Garcini properly preserved this argument, the Supreme Court may have dealt with the interesting question whether the $175,000 the hospital paid was for the emotional distress, as the jury found, or whether it was apportioned among all of the counts at issue in the first trial's post-trial motions. However, because Ms. Thornton was never given an opportunity to develop her position, Dr. Garcini forewent potential victory on this question.
3. The Thornton court's holding regarding setoff, on its face, requires parties to raise the issue in the pleadings. In Thornton, the Supreme Court suggested that the issue should have been raised by way of counterclaim. This approach appears inconsistent with the Court's holding in Star Charters v. Figueroa, 192 Ill.2d 47 (2000), a case not addressed by the Thornton court.
In Star Charters, the Court held that a defendant was entitled to a setoff, even though the defendant did not make its request for setoff until two months after judgment was entered. The Star Charters court reasoned that a request for setoff to reflect amounts paid by settling defendants "seeks not to modify, but rather to satisfy, the judgment entered by the trial court." The Court further reasoned that a request for setoff arises as part of the enforcement proceedings of the judgment court, rather than as a result of trial.
The Illinois Supreme Court may eventually be forced to reconcile Star Charters and Thornton. If and when this occurs, the Court will presumably address the practitioner's obligation to file a counterclaim in order to gain the benefit of a setoff. In the meantime, practitioners should heed the requirement apparent on the face of the Thornton decision, and preserve a right to setoff with a counterclaim.