SECOND DIVISION
June 15, 2004
Plaintiffs-Appellees, PRESTON TRUCKING COMPANY, INC., and RON Defendants-Appellants and Third-Party (A and G Electrical Contractors, Inc., and F.H. Paschen Third-Party Defendants-Appellees). | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Cook County No. 00 L 4502 Honorable Donald M. Devlin, Judge Presiding. |
We review a substantial jury verdict in which one of the issues is whether a defendant mayattack a verdict through juror affidavits that establish that the jury used a method that yielded aquotient verdict. We affirm.
Defendants Preston Trucking Company, Inc., and Ron Trieb appeal a $3,169,008 juryaward for plaintiff John Carroll in a personal injury action. Defendants argue: (1) the trial courtabused its discretion by excluding videotape evidence offered to show the nature and extent ofplaintiff's injuries; (2) the trial court erred in striking juror affidavits supporting defendants' theorythat the jury reached its verdict through an impermissible quotient process; and (3) the verdict wasthe result of passion and prejudice.
On November 22, 1996, plaintiff was employed as an electrician by A&G ElectricalContractors, Inc., and assigned to work at the Sugar House Project located at 358 West Harrisonin Chicago, Illinois. F.H. Paschen Group, Inc., was the general contractor for the project. A&Gwas hired to install new switch gears, panels and lights at the project. A switch gear is a piece ofpower equipment that acts as a main distribution center for electricity.
In the afternoon of November 22, plaintiff and his coworkers were asked to unload twoswitch gears from a truck owned by Preston Trucking and driven by Trieb, an employee ofPreston Trucking. When plaintiff and his coworkers arrived at the loading dock, they decided theswitch gears, which weighed approximately 2,347 pounds collectively, were too heavy to unloadat that particular dock. Trieb agreed to drive the truck to a lower dock. Plaintiff rode in the backof the truck with the switch gears. As the truck crossed a bridge on an incline, the larger switchgear fell on top of plaintiff, injuring his left knee.
Plaintiff was taken to the hospital, where he was diagnosed with ligament damage. Plaintiff underwent several surgeries, including knee replacement surgery. Although the surgerieswere successful and later examinations showed plaintiff had recovered from 0 to 130 degrees ofmotion, plaintiff continued to experience pain and swelling in his left knee. Plaintiff wasprescribed compression stockings to alleviate the swelling. Plaintiff's doctor said the injury waspermanent. Plaintiff, who was 5 feet 9 inches and approximately 300 pounds at the time of hisaccident, also was advised to lose weight. Plaintiff was told he could return to light-duty work,preferably in a job that did not require standing for long periods.
On March 14, 1997, plaintiff filed a negligence action against defendants that included aspouse's claim for loss of consortium. Defendants brought a third-party action against A&G andPaschen for contribution. A&G and Paschen were dismissed from this appeal and defendants'claims against them are not at issue.
During discovery, defendants served A&G with a notice to produce all relevantphotographs and video surveillance. After discovery was completed but before trial, A&Gproduced a surveillance videotape of plaintiff taken in the summer of 1999. A&G's worker'scompensation carrier had hired a company to conduct the surveillance in connection to a relatedworker's compensation claim. The videotape spans several days and appears to have been edited. The part at issue was recorded in the late morning and afternoon hours of July 1, 1999. Therecording shows plaintiff in the front and back yards of his home, walking without the assistanceof a cane, moving a ladder, bending over, operating a chain saw, using his weight as leverage toremove a tree stump, walking up and down stairs, swinging an ax, picking up and carrying treebranches and pushing a wheelbarrow. Plaintiff's wife, nephew and niece are also shown in thevideo. The date and times appear in the recording.
Plaintiff moved to exclude the videotape. He argued it was produced after the discoverydeadline and defendants could not establish an adequate foundation because the surveillancecompany went out of business and the cameraman could not be identified. Defendants respondedthat A&G's failure to timely disclose the tape is not a ground for exclusion because of theprejudice defendants would suffer. Defendants also argued they could establish a foundation forthe tape through plaintiff's testimony. The trial court granted plaintiff's motion to exclude thevideotape. The court agreed with plaintiff that defendants could not establish an adequatefoundation. Defendants again sought to introduce the videotape at trial to impeach plaintiff. Thecourt denied defendants' request.
On February 26, 2002, the jury returned a verdict in favor of plaintiff for $3,169,008 andfor plaintiff's wife in the amount of $124,500. Judgment on the award was entered February 27,2002. On November 25, 2002, the trial court entered an order granting in part plaintiff's petitionfor costs under section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West 1996)).
Defendants moved for a new trial, arguing the jury reached its verdict by an impermissiblequotient method. Defendants submitted three juror affidavits in support of their theory. Plaintiffmoved to strike the affidavits on the ground that they revealed the process and methodology ofjury deliberations. The trial court granted plaintiff's motion to strike and denied defendants'motion for a new trial.
Defendants have filed two notices of appeal, Nos. 1-02-3223 and 1-02-3604. The noticesare identical with the exception that No. 1-02-3604 includes an appeal from the November 25,2002, order granting in part plaintiff's petition for costs. The appeals have been consolidated. The consolidated brief filed by defendants does not challenge the November 25, 2002, order. Thearguments raised by defendants include whether: (1) the trial court abused its discretion inexcluding the videotape; (2) the trial court erred in striking the juror affidavits and denyingdefendants' motion for a new trial; and (3) the verdict was excessive and based on passion andprejudice, requiring remittitur or a new trial on damages.
We first look at the trial court's exclusion of the videotape evidence. Admission of avideotape into evidence is within the discretion of the trial court and will not be disturbed absentan abuse of discretion. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 284, 786 N.E.2d 139(2003).
Defendants argue excluding the videotape was an improper sanction for a discovery ruleviolation under Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)). But as plaintiff points out,there is nothing in the record to suggest that the trial court decision to exclude the videotape waspunitive in nature or made in reliance on Rule 219(c). Rather, the record shows the trial courtrelied on its belief that the videotape presented a foundational hurdle that defendants could notovercome.
A videotape recording may be introduced as demonstrative evidence if it is properlyauthenticated and relevant to a particular issue in the case. Cryns, 203 Ill. 2d at 283. To establishauthenticity, a foundation must be laid by someone having personal knowledge of the filmedobject. Cryns, 203 Ill. 2d at 283-84. The foundation may be established through testimony of acompetent witness who has sufficient knowledge to testify that the videotape accuratelyrepresents what it purports to show. Cryns, 203 Ill. 2d at 284.
Plaintiff argues the trial court correctly excluded the videotape because defendants did notoffer foundation evidence from the cameraman. We disagree. The cameraman is not necessarywhere a foundation can be laid by another competent witness who has sufficient knowledge totestify that the videotape fully represents what it purports to show. People ex rel. Sherman v.Cryns, 327 Ill. App. 3d 753, 760, 763 N.E.2d 904 (2002), aff'd 203 Ill. 2d 264; MissouriPortland Cement Co. v. United Cement, Lime, Gypsum & Allied Workers International Union,Division of Boilermakers, AFL-CIO, Local No. 438, 145 Ill. App. 3d 1023, 1027, 496 N.E.2d489 (1986). Because plaintiff was shown in the videotape doing the various tasks alleged, hequalifies as a competent witness with sufficient knowledge to testify that the videotape fullyrepresents what it purports to show. We also note that plaintiff's wife, nephew and niece, whowere also in the film, could provide competent foundational testimony sufficient for admission ofthe videotape into evidence.
We believe, however, that the videotape was properly excluded on relevance grounds. See Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1005, 785 N.E.2d 507 (2003)(reviewing court may affirm trial court order admitting or excluding evidence on any ground thatappears in the record). A videotape is relevant as long as its probative value is not substantiallyoutweighed by the danger of unfair prejudice. Cryns, 203 Ill. 2d at 284. While the videotape hereis probative to show the extent of plaintiff's incapacitation and to rebut plaintiff's testimony that heexperienced constant pain (see Carney v. Smith, 240 Ill. App. 3d 650, 656, 608 N.E.2d 379(1992)), the danger of unfair prejudice to plaintiff outweighs the probative value because thevideotape was edited. It showed only those short periods of time when plaintiff was activelyparticipating in yard work. The recording stops when plaintiff goes inside his house or leaves thecameraman's range of sight, and gives the impression that plaintiff's activity is constant. Withoutan unedited span of footage, the jury could be left with the impression that plaintiff can sustainlabor-intensive activities over a period of time without rest or without experiencing pain. Weconclude it was not an abuse of discretion to exclude the videotape under these circumstances.
We next consider whether the trial court improperly struck juror affidavits in support ofdefendants' assertion that the jury reached its verdict through an impermissible quotient process. Because the sufficiency of the affidavits can be decided as a matter of law, we review the trialcourt order de novo. See Zebra Technologies Corp. v. Topinka, 344 Ill. App. 3d 474, 480, 799N.E.2d 725 (2003) (pure questions of law are reviewed de novo, whereas circuit court's findingsof fact are entitled to deference); see also Jackson v. Graham, 323 Ill. App. 3d 766, 773, 753N.E.2d 525 (2001) (ruling on motion to strike affidavit submitted in support of motion forsummary judgment is reviewed de novo).
In 1871, our supreme court held quotient verdicts to be an impermissible method by whicha jury may reach its verdict. Illinois Central R.R. Co. v. Able, 59 Ill. 131 (1871). The juroraffidavit in Able outlined the method the jury used to decide damages. Able, 59 Ill. at 133. Eachjuror wrote an amount of damages he believed the plaintiff was entitled to receive on a piece ofpaper. Able, 59 Ill. at 133. The numbers were then added and the sum divided by the number ofjurors to yield a quotient that became the verdict. Able, 59 Ill. at 133. The court held that, whilejurors may resort to such a process for experimentation purposes, an advance agreement to bebound by the result will invalidate the verdict. Able, 59 Ill. at 133-34.
The rule announced in Able surfaced more recently in Department of Transportation v.Graham, 130 Ill. App. 3d 589, 474 N.E.2d 810 (1985), on which defendants rely. The defendantin Graham moved for a new trial based on the defendant's own affidavit in which he said he wastold by three jurors that the jury reached its verdict by averaging a cumulative damage award andcomparing the average to the damages alleged by each party. Graham, 130 Ill. App. 3d at 591. The jury then rendered its verdict for the party whose estimate of damages was closest to thejuror average. Graham, 130 Ill. App. 3d at 591. The defendant also submitted an affidavit by ajuror who described the process of reaching the verdict as averaging the awards reached by eachjuror, discussing the averages and reaching an agreed verdict. Graham, 130 Ill. App. 3d at 592. The defendant's motion for a new trial based on these affidavits was denied, and he appealed. Graham, 130 Ill. App. 3d at 592. Citing Able, the appellate court remanded the case for anevidentiary hearing to decide whether the jury verdict was reached through an improper quotientmethod. Graham, 130 Ill. App. 3d at 594. The court rejected the argument that the affidavitsconstituted an improper attempt to impeach the jury verdict. Graham, 130 Ill. App. 3d at 593,citing People v. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656 (1978); Heaver v. Ward, 68 Ill. App. 3d236, 240, 386 N.E.2d 134 (1979).
Our research has not uncovered Illinois precedent outside Able and Graham that wouldsupport consideration of juror affidavits to decide whether the jury arrived at a quotient verdictthrough the deliberative process. While other appellate courts have recognized theimpermissibility of quotient verdicts, none have held that a quotient verdict is subject to collateralattack through juror affidavits describing the method by which the jury reached a verdict. SeeUrbas v. Saintco, Inc., 264 Ill. App. 3d 111, 636 N.E.2d 1214 (1994); Statler v. Catalano, 167 Ill.App. 3d 397, 521 N.E.2d 565 (1988); Singh v. Air Illinois, Inc., 165 Ill. App. 3d 923, 520 N.E.2d852 (1988); German v. Illinois Power Co., 115 Ill. App. 3d 977, 451 N.E.2d 903 (1983); Kelleyv. Call, 324 Ill. App. 143, 57 N.E.2d 501 (1944); Winn v. Cleveland, Cincinnati, Chicago & St.Louis Ry. Co., 143 Ill. App. 71 (1908); John Spry Lumber Co. v. Duggan, 80 Ill. App. 394(1899).
Holmes and Heaver, relied on by Graham, support an opposite conclusion. While neithercase concerned quotient verdicts, both dealt with juror affidavits offered to impeach verdicts. Holmes distinguished juror testimony concerning the motive, method or process by which a juryreaches its verdict and testimony concerning conditions or events brought to the jury's attention. Holmes, 69 Ill. 2d at 511-12. The court held the former category of testimony is inadmissible toimpeach a jury verdict. Holmes, 69 Ill. 2d at 512-16. Because the affidavits in Holmes wereoffered to show extraneous information improperly brought to the jury's attention and not themethod by which the jury reached its verdict, the court found the affidavits could be used toimpeach the verdict. Holmes, 69 Ill. 2d at 516. See also Heaver, 68 Ill. App. 3d at 240-41(relying on Holmes to admit juror affidavits showing that jurors considered evidence outside ofthe trial during its deliberations).
Our supreme court continues to hold that juror affidavits showing the motive, method orprocess by which a jury reaches its verdict cannot be used to impeach the verdict. See People v.Williams, 209 Ill. 2d 227, 807 N.E.2d 448 (2004); People v. Pitsonbarger, 205 Ill. 2d 444, 793N.E.2d 609 (2002); People v. Hobley, 182 Ill. 2d 404, 457, 696 N.E.2d 313 (1998). The courthas said:
" ' "[If it is] established that verdicts solemnly made and publicly returnedinto court can be attacked and set aside on the testimony of those who took part intheir publication [then] all verdicts could be, and many would be, followed by aninquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to securefrom them evidence of facts which might establish misconduct sufficient to setaside a verdict. If evidence thus secured could be thus used, the result would be tomake what was intended to be a private deliberation, the constant subject of publicinvestigation-to the destruction of all frankness and freedom of discussion andconference." ' " Hobley, 182 Ill. 2d at 457, quoting Tanner v. United States, 483U.S. 107, 119-20, 97 L. Ed. 2d 90, 105-06, 107 S. Ct. 2739, 2747 (1987), quotingMcDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 1302, 35 S. Ct. 783,784 (1915).
See also Williams, 209 Ill. 2d at 239; Pitsonbarger, 205 Ill. 2d at 468. Under this policy, juroraffidavits will not be considered to impeach a verdict unless they are offered to show "improperextraneous influences" on the jury. Hobley, 182 Ill. 2d at 457-58. In light of these more recentsupreme court cases, our inquiry is whether the affidavits here were offered to show the motive,method or process by which the jury reached its verdict or whether they show improperextraneous influences.
Hobley illustrates the difference between inquiries into the deliberative process andextraneous influences on the jury. The court in Hobley found the defendant was entitled to anevidentiary hearing on his claim that some of the jurors were subjected to intimidation bynonjurors during their deliberation. Hobley, 182 Ill. 2d at 458-59. The alleged intimidationhappened as the jurors were dining in a hotel restaurant and were confronted by patrons of therestaurant who shouted that the defendant was guilty and should be executed. Hobley, 182 Ill. 2dat 459. The court reasoned the incident was a prejudicial outside influence on the jury and jurortestimony about it could be used to attack the verdict. Hobley, 182 Ill. 2d at 459. But the courtrejected the defendant's second argument that alleged intimidation by the jury foreman was animproper extraneous influence on the other jurors. Hobley, 182 Ill. 2d at 463. The defendantalleged the foreperson told other jurors he was a police officer, showed the jurors his gun andpersuaded some of the jurors to find the defendant guilty. Hobley, 182 Ill. 2d at 463. The courtheld the defendant's argument addressed the motive, method or process by which the jury reachedits verdict and could not be used to impeach the verdict. Hobley, 182 Ill. 2d at 463.
It is clear the affidavits in this case also relate to the motive, method or process by whichthe jury reached its verdict. Each affidavit describes what took place as the jurors deliberatedwith no one else present. The affidavit by Kelly Sternes read:
"We the jurors could not agree on the amount of the verdict. The numberswere all over the place. We could not reach an agreement on the awards for painand suffering, disability[] and disfigurement. We then reached an agreement thateach would write a number on a piece of paper, that the numbers would beaveraged and divided by the number of jurors which was twelve, and that wewould be bound by and accept the average for the verdict. There were nodeliberations after we calculated the averages for each of these awards."
Theresa Lucas said in her affidavit:
"We the jurors agreed on the amount of the verdict basing monetaryawards for pain and suffering, disability[] and disfigurement on an average of eachjuror's estimate. We then reached an agreement that each would write a numberon a piece of paper, that the numbers would be averaged and divided by thenumber of jurors which was twelve. After reading aloud the average for eachaward, we agreed to use those dollar amounts to calculate the total verdict. Wedid not deliberate any further."
The last affidavit, by Victoria Krimm, reads:
"We the jurors could not agree on the amount of the verdict. There was noconsensus on the numbers in the room. We could not reach an agreement on theawards for pain and suffering, disability[] and disfigurement. We then reached anagreement that each would write a number on a piece of paper, that the numberswould be averaged and divided by the number of jurors which was twelve, and thatwe would be bound by and accept the average for the verdict. There were nodeliberations after we calculated the averages for each of these awards."
There is no showing of extraneous influences that would support a collateral attack on the verdict. While the affidavits unquestionably describe a quotient verdict, they amount to the kind ofevidence barred by the holding in Hobley.
We believe that, under current supreme court cases, juror affidavits cannot be used toimpeach a jury verdict on the ground that it was reached through an impermissible quotientmethod unless it can be shown that the decision to employ it was the result of extraneousinfluences. The affidavits in this case were properly stricken.
Defendants' final argument concerns whether the jury verdict was excessive. Defendantscontend the jury was incited by passion and prejudice through plaintiff's closing argument and thetrial court's exclusion of the videotape into evidence. Defendants request a new trial on damagesor, in the alternative, a remittitur of $1,994,008 in the amount awarded plaintiff and $99,500 inthe amount awarded plaintiff's wife. We will not reverse the jury award unless it falls outside therange of fair and reasonable compensation, appears to be the result of passion or prejudice or is solarge that it shocks the judicial conscience. See Epping v. Commonwealth Edison Co., 315 Ill.App. 3d 1069, 1072, 734 N.E.2d 916 (2000).
Defendants cite two alleged trial errors as evidence that the jury was influenced by passionand prejudice. The first-exclusion of the videotape into evidence-did not constitute error. Asdiscussed earlier, we believe the probative value of the videotape was outweighed by the potentialprejudice to plaintiff. Defendants' second contention of error concerns the following remarks byplaintiff during closing argument:
"But the defendant wants you to apparently be sympathetic to Mr. Triebbecause he's a grandpa. I'm offended. I think it's offensive to even have broughtthat out.
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The defense got up and made arguments in front of all of you and it wasabsolutely offensive. What they said to you was offensive.
The defendant said to you, use the evidence. How ironic that thedefendants in this case would say to you, use the evidence, when there is noevidence in this case that supports [their] position.
The defendants [want] you not to follow the evidence. The defendantswant you not to follow the law.
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*** The defense is saying to you, pay no attention to the evidence, pay noattention to the law. Only listen to my unsupported arguments.
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It's funny that [Trieb] doesn't mention in here wood bracing. It's funny that[Trieb] doesn't mention in this accident report a pallet. It's funny that [Trieb]doesn't mention cellophane wrap on the day of the accident before the lawyers gotinvolved-
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This is what Mr. Trieb said before the lawyers got involved.
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*** And it's offensive that the defense would have said to you those things. It is absolutely offensive. And I apologize for getting angry. I can't believe thedefense did that.
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Counsel says to you, ignore the facts. Ignore the evidence. Ignore the law. Give him less than five percent of what he asks for. Give him less than $500,000. It's offensive. You should be offended by that argument."
Defendants have not cited authority in support of their argument that these comments wereimproper, thereby waiving such argument. See In re G.O., 191 Ill. 2d 37, 46, 727 N.E.2d 1003(2000).
Defendants next argue the verdict is excessive when compared to verdicts reached insimilar cases. Illinois courts have declined to make such comparisons, recognizing there is nomathematical formula for deciding whether an award is fair and reasonable. Epping, 315 Ill. App.3d at 1072. "[A] damages award for a personal injury 'must be examined in the light of theparticular injury involved, with humble deference to the discretion of the jury and the judgment ofthe trial court.' " Epping, 315 Ill. App. 3d at 1073, quoting Kopczick v. Hobart Corp., 308 Ill.App. 3d 967, 979, 721 N.E.2d 769 (1999). Factors that may be considered include: (1) the extentand permanency of the injury; (2) the possibility of future deterioration; (3) medical expenses; and(4) restrictions placed on the plaintiff as a result of the injury. Epping, 315 Ill. App. 3d at 1072.
Defendants argue the noneconomic damages award of $2,244,500 "makes no sense" whencompared to jury awards in other cases. We rejected a similar argument in Epping. Thedefendant there sought to vacate a $9 million noneconomic jury award. Epping, 315 Ill. App. 3dat 1072. We declined to compare the award to other cases, saying:
"[J]urors, when considering damages, 'use their combined wisdom andexperience to reach fair and reasonable judgments. We are neither trained norequipped to second-guess those judgments about the pain and suffering andfamilial losses incurred by other human beings. To pretend otherwise would besheer hubris.' " Epping, 315 Ill. App. 3d at 1073, quoting Barry v. Owens-CorningFiberglas Corp., 282 Ill. App. 3d 199, 207, 668 N.E.2d 8 (1996).
We also decline to compare the jury award entered here to jury awards in other cases. Instead, we review the record to ensure that the award falls within the range of fair and reasonablecompensation, does not appear to be the result of passion or prejudice, nor is so large that itshocks the judicial conscience. See Epping, 315 Ill. App. 3d at 1072. The evidence at trialshowed defendant continued to suffer pain in his knee despite three surgeries, required a cane towalk, was restricted to light-duty work and would continue to experience swelling that requiredplaintiff to wear compression hose. We cannot say that, in light of this evidence, the jury awardwas the product of passion or prejudice. Nor does it shock the judicial conscience.
The judgment of the circuit court is affirmed.
Affirmed.
BURKE and GARCIA, JJ., concur.