Cotton v. Coccaro

236 N.E.3d 517

2023 IL App (1st) 220788

Maya COTTON, Plaintiff-Appellee,

v.Gregg COCCARO, M.D., and Associated St. James Radiologists, S.C., Defendants-Appellants.

No. 1-22-0788

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed June 9, 2023

Appeal from the Circuit Court of Cook County. No. 2016 L 5679, Honorable Israel A. Desierto, Judge presiding.

Scott L. Howie and Jeffrey E. Eippert, of Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellants.

Michael T. Reagan, of Ottawa; Clark M. Raymond, Patricia E. Raymond, and Robert L. Raymond, of Raymond & Raymond, Ltd., of Schaumburg; and Bruce R. Pfaff, of Pfaff, Gill & Ports, Ltd., and Yvette C. Loizon, of Clifford Law Offices, P.C., both of Chicago, for appellee.

Nicholas Nepustil, of Benjamin & Shapiro, Ltd., of Chicago, for amicus curiae Illinois Trial Lawyers Association.

OPINION

JUSTICE MITCHELL delivered the judgment of the court, with opinion.

¶ 1 Defendants Gregg Coccaro, M.D., and Associated St. James Radiologists, S.C., appeal the $6.5 million jury verdict in this medical negligence case. This appeal raises the following two issues: (1) did the trial court abuse its discretion in making a series of rulings related to evidence, argument, and instructions that unfairly prejudiced defendants and thus warrant a new trial and (2) did the trial court err in awarding prejudgment interest because the General Assembly’s 2021 amendment mandating prejudgment interest in personal injury and wrongful death cases (735 ILCS 5/2-1303(c) (West Supp. 2021)) violates the Illinois Constitution? Because we answer each question, "No," we affirm the judgment for plaintiff for the reasons that follow.

¶ 2 I. BACKGROUND

¶ 3 At age 27, Maya Cotton discovered a pea-sized lump in her breast during a self-examination. Concerned, she asked her mother and her sister to feel it. They confirmed the lump and agreed that Cotton should see a doctor. Cotton went to a community health clinic for a breast exam, and a doctor there gave her an order for an ultrasound.

¶ 4 Cotton did not have a primary care physician, so her sister referred Cotton to Dr. Charlotte Mitchell. In March 2009, Cotton went to Dr. Mitchell for the first time and told her about the lump in her breast. Dr. Mitchell performed a breast exam and also felt the lump. After going over Cotton’s medical history and family history, Dr. Mitchell gave Cotton an order for a mammogram and recommended that she go to St. James Hospital in Olympia Fields. Cotton took the first available appointment there. A radiology technician who performed the mammogram informed Cotton that the mammogram and ultrasound were clear and told her to do a follow-up for regular mammograms after the age of 35. Dr. Gregg Coccaro, a radiologist, had interpreted Cotton’s mammogram and ultrasound.

¶ 5 The next month, Cotton went to Dr. Gail Cansler for an annual gynecological exam. During this exam, Dr. Cansler did a breast exam, and Cotton told her about the lump and the recent breast imaging she did at St. James Hospital. They discussed Cotton’s age, her family history, the mammogram and ultrasound results, and the possibility of the lump being fibroid tissue. Dr. Cansler told her to follow up the next year with an annual appointment.

¶ 6 Several months later, Cotton went back to Dr. Mitchell because of chest pain. Cotton had also noticed that the lump in her breast felt a little bigger. Cotton informed her of the results from the breast imaging and of the conversation with Dr. Cansler about the lump. Dr. Mitchell noted that the mammogram and ultrasound results were clear and told Cotton that "it was nothing to worry about." Cotton visited Dr. Mitchell several more times, but Cotton’s breast lump was not the focus of these visits.

¶ 7 In May 2010, Cotton attended a family reunion in Mississippi. There, Cotton told a relative who was going through breast cancer treatment about her breast lump. After feeling the lump, the relative urged Cotton to get a second opinion. When she returned home, Cotton made an appointment with Dr. Syed Akhter. Cotton told him about the lump in her breast and the medical visits that she had in relation to the lump. After examining the lump, Dr. Akhter sent her to get an MRI, and the results suggested cancer. Dr. Akhter then sent Cotton to get a biopsy. The biopsy results came back positive for cancer.

¶ 8 In 2011, Cotton filed a medical negligence action against several healthcare providers—including Dr. Mitchell, Dr. Cansler, and Dr. Coccaro—in connection with their failure to diagnose her breast cancer. Dr. Mitchell and Dr. Cansler settled and were dismissed from the original action. Subsequently, Cotton voluntarily dismissed the suit without prejudice and refiled this medical negligence suit against medical personnel and professional entities involved in the breast imaging done at St. James Hospital.

¶ 9 The case proceeded to a jury trial, and a jury returned a verdict in Cotton’s favor and against Dr. Coccaro and Associated St. James Radiologists in the amount of $6,528,000. The trial court entered a judgment on the verdict and denied Cotton’s motion for prejudgment interest. Cotton filed a posttrial motion for an increase in the judgment award and also renewed her request for a prejudgment interest award. The briefing on this motion concerned the constitutionality of the prejudgment interest statute. See id. § 2-1303. The trial court modified the original judgment order to include prejudgment interest, and Cotton withdrew her posttrial motion as moot. After a setoff for the prior settlements in the amount of $1,758,482.73, and the addition of prejudgment interest of $111,332.29, the trial court entered a judgment in the amount of $4,880,849.56 against defendants. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1, 2017).

¶ 10 II. ANALYSIS

¶ 11 A. Trial Errors

¶ 12 Defendants argue that a series of trial court errors deprived them of a fair trial because those errors, both individually and cumulatively, impeded their ability to present their theory that Dr. Cansler and Dr. Mitchell (not Dr. Coccaro) were the sole proximate cause of Cotton’s injury. Separately, they also argue that the trial court abused its discretion in giving the jury a redundant issues instruction. We address each error in turn.

¶ 13 1. Exclusion of Evidence That Other Doctors Were "Wholly Responsible"

[1] ¶ 14 Defendants contend that the trial court abused its discretion by excluding evidence and argument that Dr. Cansler and Dr. Mitchell were "wholly responsible" for the delayed diagnosis of Cotton’s breast cancer. Specifically, defendants contend that the trial court granted a motion in limine that excluded such evidence. We review a trial court’s decision to exclude evidence on relevance grounds for an abuse of discretion. Greater Pleasant Valley Church in Christ v. Pappas, 2012 IL App (1st) 111853, ¶ 39, 363 Ill.Dec. 687, 975 N.E.2d 713. A trial court abuses its discretion "only if it act[s] arbitrarily without the employment of conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles of law [citation] or if no reasonable person would take the position adopted by the court." (Internal quotation marks omitted.) Schmitz v. Binette, 368 Ill. App. 3d 447, 452, 306 Ill.Dec. 447, 857 N.E.2d 846 (2006).

¶ 15 Significantly, in granting the motion in limine, the trial court reasoned that the evidence would not show that Dr. Cansler and Dr. Mitchell were "wholly responsible" for the delayed diagnosis. When the trial court invited defense counsel to make a record, counsel effectively agreed, with the court:

"[DEFENSE COUNSEL]: With respect is [sic] motion No. 6, Judge, what I would comment is that we do not intend to offer any testimony from any person that Dr. Mitchell or Dr. Cansler was wholly responsible for ***

* * *

What we do want to protect is our ability to assert and then argue once the evidence has been introduced to support our defense, which includes the fact that its sole proximate cause can be placed with Dr. Cansler and Dr. Mitchell, the primary care doctors in this case. And the Court has made it clear when we discussed this motion off the record that *** any argument that is properly based on evidence in the record would be permitted. And if that sole proximate cause evidence exists, we will be permitted to argue that they are, in fact, responsible for these injuries."

[2] Defense counsel acquiesced in the trial court’s evidentiary ruling, and having failed to object, defendants forfeited the argument on appeal. Further, defense counsel failed to raise the issue at trial and made no offer of proof. See Ill. R. Evid. 103(b)(3) (eff. Oct. 15, 2015); Snelson v. Kamm, 204 Ill. 2d 1, 23, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003) ("When a motion in limine is granted, the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court."). As a consequence, we are left guessing as to what evidence was even excluded, and we have no way to weigh prejudice stemming from that ruling if it was, in fact, erroneous.

[3, 4] ¶ 16 The suggestion that the trial court somehow hamstrung defendants from arguing sole proximate cause is unpersuasive. Indeed, a defendant has "the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause" of the plaintiff's injury. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995). Defendants had a full opportunity to, and in fact did, present evidence through their own expert witnesses that the negligence of Dr. Cansler and Dr. Mitchell was the sole proximate cause. The expert witnesses testified that an order for any follow-up studies, including a biopsy, would ordinarily come from the patient’s primary care physicians, not from the radiologist. Defense counsel extensively argued in his...