A Cook County jury’s $53 million verdict entered against the University of Chicago Medical Center in June was slightly reduced but stayed largely intact despite the hospital’s second request for a new trial.
Ruling on the hospital’s post-trial motion, Circuit Judge John P. Kirby last month reduced the jury’s $7.25 million award in future medical expenses for 12-year-old Isaiah Ewing to $6.3 million to better align with expert testimony regarding his life expectancy after a brain injury during his mother Lisa’s labor and delivery caused him to suffer cerebral palsy.
But he denied the hospital’s second request for a do-over in a separate hearing eight days later, finding neither any trial error nor plaintiff lawyer Geoffrey Fieger’s conduct prejudiced the hospital from receiving a fair trial.
J. Timothy Eaton, a partner at Taft Stettinius & Hollister LLP who argued the motion for the hospital, said his client will appeal Kirby’s ruling but declined further comment.
In July, during arguments over its initial motion for a mistrial, the hospital argued Fieger made several inappropriate statements — including allusions to a defense cover-up as well as parallels to Nazi propaganda and racial interjections — during his arguments after a nearly three-week trial before Kirby.
The hospital renewed those arguments in its post-trial motion, among other contentions that Fieger’s conduct plus expert disclosure and motions in limine violations cumulatively prejudiced the hospital at trial.
Regarding allegations of a cover-up, Kirby found Fieger used the term only once — and it was during his opening when he argued Isaiah’s medical records and doctors would point to anything but a cover-up.
“This was the theme of the plaintiff’s case throughout that there were medical records that established that there was an injury to the child while he was in the care of the University of Chicago,” Kirby said during the Dec. 29 hearing.
And just as Fieger used Isaiah’s medical records to prove his theory, Kirby noted, so did the hospital in arguing and proving its theory that Isaiah had an infection that caused his injury.
He found the essence of the hospital’s argument regarding closing arguments was that Fieger “used professional disagreement among experts and his own mischaracterization of their opinions” as grounds to challenge the hospital’s trial counsel and experts.
“But when the allegation is that the attorneys used professional disagreement among their experts to their own benefit, that is the essence of advocacy, to find those disagreements,” Kirby said. “And that’s what happened here. The plaintiff throughout established that there were medical records that were inconsistent, that part of the hospital said one thing, others said another.”
The hospital also argued Fieger mentioned “a minister of truth in propaganda” that says people will believe a lie if it’s repeated enough. That statement, it argued, unmistakably compared the hospital and its trial strategy to Nazi propaganda.
Kirby noted its argument in that regard asked him to conclude that such a phrase is universally aligned with terms such as “Nazi” and “Holocaust.”
“This is a conclusion that the court cannot make,” Kirby ruled, noting case law the hospital cited in that regard did not support its argument.
The University of Chicago also challenged Fieger’s mention of the novel “To Kill a Mockingbird” during closing arguments. It contended his use of the story — which centers on a white man who represented a black man during trial — wrongly inserted race into the case and sent the jury a message that money interests were motivating the hospital to deprive Isaiah of justice.
But Kirby reiterated a sentiment he shared during oral arguments that the jury knew Isaiah and his mother were black from the first day of trial, when they watched a video depicting a day in his life.
“From the start of this case the plaintiff has argued that Isaiah has a right to be compensated for the injuries caused by the defendant,” Kirby ruled. “At no time did plaintiff state or infer that Isaiah should be compensated because he is an African-American.”
In weighing the cumulative effect of Fieger’s alleged misconduct, Kirby noted the jury’s verdict did not appear to be one of extreme passion, as it awarded approximately 55 percent of the $92 million it was asked to award at trial.
But beyond the verdict alone, Kirby examined the 18 questions jurors asked of the witnesses regarding the medical equipment, tests and procedures used during Isaiah mother’s care as well as past care she received and potential affects it could have posed on Isaiah.
He ruled his review made it clear the jury was focused on the case’s facts and issues presented by both sides and asked pertinent questions regarding them.
“The court believes that the jury worked extremely hard in coming to a decision,” Kirby ruled. “They did not base their decision on the personalities, style, argument or tactics of the attorney. They followed the instructions.”
Matthew M. Patterson — an associate at Beam & Raymond who also represents Isaiah and his mother — reiterated Kirby’s sentiment that Fieger is a zealous advocate for his clients and said he is a successful trial attorney “for very good reasons.”
“That’s what I’ve known from Mr. Fieger from my time working with him — he’s unbelievably impressive and has an uncanny ability to [summarize] all the evidence in the medical records and explain it to the jury,” he said. “He deserves a lot of the credit, but to say that his actions unfairly prejudiced the trial is simply not what happened. The jury based the decision on the evidence.”
Beam & Raymond managing partner Jack Beam also represented the plaintiffs.
Jonathan B. Amarilio, a partner at Taft Stettinius & Hollister, also represented the hospital during its post-trial motion proceedings.
The case is Isaiah Ewing v. University of Chicago Medical Center, 13 L 13750.