When is a plaintiff’s win not a win and a defendant’s loss not a loss?
When the jury awards $0.
Now the plaintiff is getting a second chance.
A 1st District Appellate Court panel has affirmed a Cook County judge’s ruling that granted a new trial in a medical-malpractice and wrongful-death case in which a jury found in favor of the plaintiff — yet awarded no money in damages.
Concetta Cimino was 83 years old in January 2009 and, according to testimony from her family, in “pretty good health” when she phoned her daughter and told her that she had been vomiting regularly.
When the vomiting did not subside, the daughter drove Cimino to Gottlieb Memorial Hospital in Melrose Park the following day.
After blood tests and an inconclusive CT scan, Cimino’s general practitioner told the daughter that Cimino would need a colonoscopy to identify the cause of the vomiting, adding that surgery might be required.
The colonoscopy was ultimately authorized and performed by a different doctor, Gerald Sublette.
Complications arose during the colonoscopy, leading to emergency surgery. During that surgery, the specialist in general and vascular surgery realized that the diverticula had perforated “either prior to, during or after the colonoscopy.”
Cimino was admitted to the intensive care unit and died there two days later.
Cimino’s son, Salvatore, filed a lawsuit in September 2009 in Cook County Circuit Court, alleging Sublette deviated from the standard of care by performing the colonoscopy instead of first trying other options.
In April 2013, after a three-day jury trial before then-Circuit Judge Thomas L. Hogan, a jury found Sublette negligent in Cimino’s death, ruled in the estate’s favor but awarded no damages.
Burton I. Weinstein of Baskin, Server, Berke & Weinstein LLC — which represented Cimino’s estate — asked for more than $20,000 for medical expenses from the time of the surgery to the time of Cimino’s death, $10,500 for funeral expenses, $1.2 million in damages to Cimino’s children and a $75,000 survival action.
A month after the verdict, Weinstein moved for a new trial solely on damages, arguing the jury did not follow instructions.
“I think Judge Hogan gave us a great trial,” Weinstein said. “What went wrong was the jury’s inexplicable actions.”
He contended the jury was instructed that if it found Sublette liable, then it must also award damages for at least the amount of medical and funeral bills.
“If they had just even awarded me the medical and funeral expenses, I would have had a very difficult case” on appeal, Weinstein said.
The defense opposed the plaintiff’s motion, saying that no new trial was necessary because the verdict was legally consistent.
The defense added that if a new trial were granted, it should address liability as well as damages.
In October 2013, Hogan granted a complete retrial.
The appellate court initially issued its ruling as an unpublished order in March, affirming Hogan’s judgment. The panel agreed to publish the ruling last week at the plaintiff’s request.
In a 40-page opinion written by Justice James Fitzgerald Smith, the panel ruled that “under these facts, we find that the trial court did not abuse its discretion in vacating the verdict, as inconsistent, and setting the cause for a new trial on all issues.”
Smith wrote that the jury had two verdict forms to pick from.
“The jury instructions explicitly advised the jury that if it chose to sign verdict form A, instead of B, it was required to determine the amount of damages to be awarded to the plaintiff,” he wrote.
Form A, in the plaintiff’s favor, itemized damages for both pecuniary and economic losses.
Smith acknowledged that it’s not impossible for a jury to find zero pecuniary damages along with a finding of liability if it determines the less-tangible losses do not have monetary value.
“However, contrary to the defendant’s position, the same zero award for medical and funeral expenses incurred by Concetta’s estate is inexplicable where the evidence of those expenses was stipulated to and undisputed at trial,” Smith wrote.
Justices David Ellis and Nathaniel Howse Jr. concurred in the opinion.
Representing the defense in trial court were Sommer R. Luzynczyk and Charles F. Redden of Pretzel & Stouffer Chtd. Redden has since left the firm for Cunningham, Meyer & Vedrine P.C.
Joining Luzynczyk and Redden on appeal was Scott L. Howie, also of Pretzel & Stouffer.
All three declined to comment.
The case is Salvatore Cimino v. Gerald Sublette, M.D., 2015 IL App (1st) 133373.