Illinois Appellate Court Reverses a Second Judge’s Overturning of $9.9 Million Jury Verdict

Frank Russo appealed from an order that wiped out his $9.9 million jury verdict against Corey Steel. In this case, the trial judge stepped aside during the post-trial proceedings and Corey Steel’s request for a new trial was granted by a second judge. This was based on his disagreement with the first judge’s ruling on expert testimony.

The amount of damages was the only question for the jury to consider in this admitted-liability, personal-injury lawsuit. Russo, who had hip surgery after an incident caused by a Corey Steel employee, wanted to present testimony from Jeffrey Coe, a physician who also has a Ph.D. in occupational medicine. In his testimony, Dr. Coe would have stated that it is reasonably likely Russo will need an additional hip surgery in the future.

Corey Steel’s lawyer objected because Dr. Coe’s specialty is occupational medicine, not orthopedic surgery; however, the trial judge nonetheless permitted his testimony.

The Illinois Appellate Court on appeal reversed the order that granted the motion for a new trial brought by Corey Steel. The Illinois appeals panel explained that the successor judge’s ruling was subject to de novo review because it was based on the successor’s (judge’s) conclusion that, as a matter of law, Dr. Coe was not qualified to give an opinion on the need for future surgery.

The second judge also erred in concluding that only an orthopedic surgeon was competent to testify on whether it was reasonably likely Russo would need additional hip surgery.

The appeals panel relied on a case of Balciunas v. Duff, 94 Ill.2d 176 (1983) where the Illinois Supreme Court held as follows:

“Prior interlocutory rulings should be modified or vacated by a successor judge only after careful consideration. In the context of discovery, where abuse is said to be widespread and delay phenomenal, we think it is particularly appropriate for a judge before whom a motion for reconsideration is pending to exercise considerable restraint in reversing or modifying previous rulings. This is especially true if there is evidence of ‘judge shopping’ or it is apparent that a party is seeking, for delay or abusive purposes, a reconsideration of prior rulings.”

Balciunas, 94 Ill.2d at 187-88.

Balciunas states that the successor judge should approach the discretionary order of a prior judge if the order comes before the successor judge. From this, plaintiff argues this court should conduct a de novo review of the post-trial proceedings to determine if the trial judge abused his discretion in admitting Dr. Coe’s opinion because we are in the same position as the post-trial judge when he issued his order reversing the trial judge.

The defendant argued that the standard review this court applies to its successor judge’s ruling on a post-trial motion is the same standard we would apply with the same judge who presided over the trial if the judge hears a post-trial motion, and it is the post-trial judge’s “exercise of discretion which is before this court on appeal.”

In this case, the defendant asserted this court did not ask whether the trial judge abused his or her discretion “when the original order was entered in the middle of an ongoing trial.”

The defendant argued that the traditional standard for the successor judge was found in the Illinois Supreme Court case of Towns v. Yellow Cab, 73 Ill.2d 113 (1978).

In Towns, our Supreme Court wrote:

“While prior rulings should be vacated or amended only after careful consideration, especially if there is evidence of ‘judge shopping’ on behalf of one who has obtained an adverse ruling, a court is not bound by an order of a previous judge and has the power to correct orders which it considers to be erroneous. Here, the cause was assigned to the second judge as a matter of procedure. The defendant could properly renew his motion, even though it had been denied by another judge, and the pretrial judge, in turn, could review and modify the first judge’s interlocutory order.”

Towns, 73 Ill.2d at 121.

“An interlocutory order may be modified or revised by a successor court at any time prior to the filing of a judgment. However, in circumstances where the interlocutory order involves the exercise of a prior judge’s discretion, the successor judge may overturn the order only where new facts or circumstances warrant such action and there is no evidence of ‘judge shopping.’ A noteworthy exception to this rule exists where the successor judge finds that the previous interlocutory order is erroneous as a matter of law. In such a case, the successor judge has the power to correct the previous order regardless of existence of a new matter.”

Bailey v. Allstate, 316 Ill.App.3d 949 (2000).

Here, the appeals panel believed that the post-trial judge found that the prior order was erroneous as a matter of law. The post-trial judge had the power to make that determination and we must now turn our attention to whether the determination by the post-trial judge was erroneous. The trial judge did not abuse his discretion in allowing Dr. Coe to offer an opinion on plaintiff’s need for future hip surgery; the post-trial judge abused his discretion in striking Dr. Coe’s testimony and ordering a new trial. That order was accordingly reversed and judgment was entered and affirmed.

Russo v. Corey Steel, 2018 IL App (1^st) 180467 (Dec. 28, 2018).

Kreisman Law Offices has been handling catastrophic injury lawsuits, work injury cases, construction site lawsuits and traumatic brain injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Libertyville, Olympia Fields, Flossmoor, Highwood, Homewood, Highland Park, Hinsdale, Wheaton, Crystal Lake, Grayslake, Bensenville, Alsip, Worth, South Holland, Chicago (Gresham, Hegewisch, East Side, Back of the Yard, Little Italy, Greek Town, West Town, Englewood, Austin), New Lenox, Northlake, Glencoe, Evanston, Niles and Des Plaines, Ill.