Bland v. Q-West, Inc. 2023 Ill. App. 2d 210683 —A “Stand Out” Decision By The Illinois Appellate Court, Second District.
By Melinda S. Kollross
The recent decision in Bland would be noteworthy just for the fact that an Illinois Appellate Court reversed a plaintiff’s personal injury verdict of $51 million and remanded the case back for a new trial. But this decision stands out for several reasons:
—Bland provides another example of how a properly preserved record provides the basis for a winning defense appeal;
–Many of the Appellate Court’s rulings leading to its reversal involved errors which were governed by the highly deferential abuse of discretion standard of review, and
–The Bland appellate decision put a stop to the closing argument “antics” plaintiff’s personal injury lawyers use to inflame a jury to award the kind of “nuclear verdict” reversed here.
Plaintiff Bland and his friend, Kyle George, were drinking hard one night at defendant’s bar. Bland started fighting with George and defendant’s employees intervened and the bar manager sent Bland to her office. When Bland returned to the bar, he again started fighting with George. Defendant’s employees again tried to intervene to stop the fighting and tried to carry Bland outside from the bar. Bland resisted the efforts of the employees to remove him from the bar and he and the employees fell through a door, whereupon he began kicking at the employees, and one of Bland’s kicks connected with an employee’s throat and chin. Defendant’s employees returned Bland to the bar and called for paramedics, but Bland was uncooperative with the paramedics as well as other medical personnel.
Bland later complained of neck pain and leg immobility. Bland ended up a quadriplegic. Bland sued defendant Q-West for negligence, as well as various medical providers who settled out. The case went to trial against defendant Q West alone, and the jury found for Bland awarding him $51 million. The jury found Bland 20% at fault though, making Q West liable for only $41 million.
The Appellate Court reversed and remanded for a new trial. The court based its decision on various points of error.
Motion to Amend Affirmative Defenses
At the end of his case, Bland was allowed over objection to amend his complaint adding the claim that defendant manhandled him. Defendant then sought leave to add an affirmative defense of self-defense. The Appellate Court found that the trial court abused its discretion in denying defendant leave to add that defense, holding that the trial wrongfully denied defendant the ability to defend against Bland’s additional claim, and instruct the jury on self-defense.
Contributory Defense Instruction
The Appellate Court ruled that the trial court abused its discretion by refusing to completely instruct the jury about Bland’s contributory negligence in causing his own injury. Specifically, the trial court refused to instruct the jury about Bland’s conduct in kicking at defendant’s employees. Finding the evidence of Bland’s kicking ample which showed Bland to be the aggressor, the court found that the trial court’s refusal to so instruct the jury about Bland’s kicking to be reversible error.
Using Bland’s Expert’s Answers to Rule 213(f)(3) Interrogatories
The Appellate Court ruled that the trial court abused its discretion or erred as a matter of law in refusing to allow defendant to use Bland’s expert’s answers to defendant’s Rule 213(f)(3) interrogatories. The expert stated that Bland’s spinal injury was caused by a combination of defendant’s employees and the paramedics and ER physician who treated Bland, and that the actions of the paramedics were a direct proximate cause of Bland’s spinal cord injury. Because the interrogatories were signed by Bland’s attorney and not just by the expert, the Appellate Court ruled that the interrogatory answers constituted an admission by Bland and were admissible as substantive evidence of some other sole proximate cause of Bland’s injury. Refusing to admit this as substantive evidence and failing to instruct the jury on sole proximate cause wrongfully took the issue of injury causation from the jury.
Since this case was going back for a new trial, the Court addressed some of the “tricks” used by Bland’s attorneys in closing argument to prevent this conduct from occurring on retrial.
The Demonstrative “Dummy”
Using demonstrative objects in closing argument is a favorite trick to inflame the jury, and this case was no exception.
Bland’s attorney used a dummy made from material purchased at a Home Depot as a demonstrative exhibit to illustrate what occurred to Bland at defendant’s bar. This was erroneous for a variety of reasons according to the court: It was “unsound”; the dummy would make at best a “crude representation of a human body”, and “such a makeshift prop, being manipulated by counsel while he argues, would tend to be a distraction and of questionable value”. Simply put, there is no place in a fair trial for such “antics”.
The Irrelevant Employee Manual
Plaintiff PI lawyers are always looking to “trot out” an employee manual to inflame the jury’s passions to argue that a worker didn’t even follow his own company’s rules. But all that is irrelevant because company manuals do not create any legal duties outside of what the law requires, which is just reasonable care. But that rarely stops the argument from being made, and again, this case was no exception.
The Appellate Court found that the Bland’s counsel’s closing argument was replete with references to the “employee manual” and how the employees violated it. According to the court, the totality of counsel’s argument on the employee manual “misstate the law and were improper arguments”.
Bland makes these points plain:
–The Bland reversal would never have occurred absent a properly preserved record for appeal. This not only means objecting at trial but making all these points of error again in a comprehensive, timely filed post-trial motion. The best way to ensure the proper preservation of your record is by retaining appellate counsel to assist at trial and to prepare the post-trial motion.
–Never “throw in the towel” for appeal just because you might only have abuse of discretion type errors. You can have a winning appeal and show that the trial court abused its discretion, as Bland illustrates. Moreover, Bland is a “boon” to the defense bar as it creates favorable precedent supporting an attack on a trial court’s rulings as an abuse of discretion, not just only to the specific points addressed but also generally to show that trial courts do abuse the discretion accorded them.
–The purpose of closing argument is to present your side of the case. Closing argument is not intended to inflame a jury to award the kind of nuclear verdict awarded here by misstating the law and using demonstrative toys.