30 Trial Journal Volume 19, Number 2 l Summer 2017

by Ryan T. McNulty

A trial is a journey to the verdict. Derived from the Latin word veredictum, it literally means “to say the truth.” Perhaps this is why Illinois courts have characterized the judicial process and the role of the jury as a search for truth.1

Despite this goal, complexity, confusion and ambiguity are often intentionally generated at trial. Accomplished trial lawyers Rick Friedman and Patrick Malone have provided plaintiff lawyers with invaluable methods to combat complexity, confusion and ambiguity when those defense tactics are used to contest liability.2 Friedman has also shown how to overcome these defense tactics when used to contest damages.3 But to the unsuspecting plaintiff lawyer and judge, defense attorneys often utilize these same methods to complicate the concept of “admitted liability.” This article will discuss methods to overcome these defense tactics. Admitted liability can be a confusing concept since it is often used interchangeably with admitted negligence. Indeed, the Notes on Use for the Illinois Pattern Jury Instructions for admitted liability state that the “concept can mean different things to different people” and “unless the instructions clearly state what is admitted and what must be proved, there is a potential for confusion.”4 When liability is admitted, the defendant must articulate exactly what is being admitted and what is not. Specifi cally, the defense must be compelled to take a defi nite stance on proximate cause.

Otherwise the defense will benefi t by the confusion that naturally follows. In strong liability cases, it is a common tactic of the defense to admit liability on the eve of trial. That admission is often followed by a motion in limine requesting exclusion of all evidence of the defendant’s negligence. The motion typically requests the court to bar any mention of the incident that caused plaintiff ’s injury, arguing that the facts of the incident are not relevant since liability has been admitted. At trial, of course, the defense has an expert doctor to contest damages. The scope of that doctor’s opinions will range from no injury caused by the incident, to an opinion minimizing the nature and extent of plaintiff ’s injury. Problematically, the defense’s motion is often granted. Then in closing, the defense attorney argues that the incident, which the jurors have heard no details about, could have never caused plaintiff ’s injuries. Jurors, not knowing anything more about the incident other than it was a “car accident” or a “fall,” inevitably fi ll this factual void with skepticism. This is particularly true when the defense attorney emphasizes how honorable the defendant is for admitting fault. A defense verdict often follows this clever tactic. Despite our familiarity with this scenario, it should not happen. Rulings that exclude evidence of a defendant’s negligent conduct when proximate cause is contested are contrary to Illinois law. Unless the defense admits duty, breach and proximate cause, plaintiff lawyers should make every effort to introduce evidence of

defendant’s negligent conduct. Much of the confusion surrounding “admitted liability” stems from the Illinois Supreme Court case of Bullard v. Barnes, cited often in the defendant’s motion in limine to exclude evidence of negligence.5 That motion usually states “it is well settled under Illinois law that once a defendant admits liability, facts relating to issues of liability are not relevant,” followed by a citation to Bullard. This language from Bullard is accurate, but it only applies when a defendant admits proximate cause. That is where the confusion often lies. While the Bullard opinion does not explicitly state that proximate cause was admitted, subsequent Illinois cases discussing Bullard make clear that proximate cause was not a disputed issue. In Bullard, the plaintiff ’s seventeen year-old son died shortly after a motor vehicle collision.6 The defendants admitted liability for the collision.7

The undisputed evidence showed that the decedent was driving southbound on a two-lane road when defendants’ truck driving northbound attempted to pass two other vehicles.8 The truck passing in the southbound lane forced the decedent to swerve off the road to avoid a head on collision.9 The decedent lost control of his vehicle as it veered back onto the road and collided with a different vehicle in the northbound lane.10 After the collision, the defendant truck driver did not stop.11 He kept driving.12 At trial, the plaintiff presented evidence of the defendant truck driver’s passing maneuver, the location

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polarizing continued on page 32

and speed of the vehicles before the collision, evidence that the truck driver did not stop after the collision, and morgue photographs of the decedent.13 The appellate court held that admitting this evidence constituted reversible error, noting that evidence of the passing maneuver might be relevant “especially when there is ground for believing the plaintiff is exaggerating his injuries.”14 But this evidence was not relevant in a wrongful death case. The appellate court noted that the photographs would usually be relevant to the nature and extent of an injury as well as the resulting pain and suffering.15 But in this case they were not relevant since there was such slight evidence that the decedent was alive after the collision and no evidence of conscious pain.16

The Illinois Supreme Court affi rmed the appellate court as to the inadmissibility of evidence concerning the passing maneuver and failure to stop after the collision.17 It reversed the appellate court’s ruling on the inadmissibility of the morgue

photographs.18 The supreme court held that the passing maneuver and failure to stop were not relevant to any issue in controversy, but the photographs were relevant to demonstrate the decedent’s pain and suffering.19

The Bullard court did not explicitly state its rationale for distinguishing evidence of the passing maneuver and failure to stop from the morgue photographs. However, a subsequent opinion from the Northern District of Illinois sheds light on the Bullard Court’s reasoning. In Evoy v. CRST Van Expedited, Inc., the court noted that it is reasonable to infer that the Bullard court “found the morgue photos relevant to pain and suffering because they showed the magnitude of the forces experienced by the decedent. This would also explain why the court excluded evidence about the passing maneuver and failure to stop: they showed nothing about the effect of the crash on the decedent, because the defendant’s truck did not make contact with the decedent’s vehicle. Indeed, this evidence only tended to show that

defendant was negligent and generally unconcerned about the well-being of the decedent, two points that would be irrelevant in a case of admitted liability.”20 Other Illinois decisions also highlight that proximate cause was not disputed in Bullard. In Rath v. Carbondale Nursing and Rehabilitation Center, Inc., the appellate court noted that “in Bullard, the only issues presented to the jury were the decedent’s pain and suffering at the time of the accident and pecuniary loss to next of kin.”21

In Long v. Yellow Cab Company, the appellate court noted that in Bullardthe “defendant admitted liability and the only issue at trial was the pecuniary loss resulting from decedent’s death.”22

Evoy, Rath and Long should be used to clear the confusion that often arises from attempts to stretch the holding of Bullard beyond its application. In Evoy, the plaintiff ’s daughter, Jillian Palenik, suffered a severe brain injury when her vehicle was hit head on by a tractor-trailer that crossed the

32 Trial Journal Volume 19, Number 2 l Summer 2017

highway median.23 The tractor-trailer driver fell asleep at the wheel allowing the truck to cross the median.24 The defendant truck company admitted liability for the collision.25 There was a trial only on the issue of damages, which resulted in a substantial verdict for the plaintiff.26

In the defendant truck company’s motion for a new trial, it argued that the trial court erred by allowing plaintiff ’s accident reconstructionist expert to testify about the circumstances surrounding the collision.27 The expert discussed photos of the scene of the collision, which were shown to the jury.28 The expert also discussed the speed, direction and weight of the two vehicles leading up to the impact.29

After analyzing Bullard, the Evoy Court reasoned that the photos along with the speed, direction and weight of the vehicles all gave the jury a sense of the magnitude of the force that the truck exerted on Palenik’s body.30 This evidence was admissible because it was relevant to Palenik’s pain and

suffering.31 Importantly, the Evoy Court specifi cally noted that while defendant did not dispute that Palenik had been seriously injured, “it did dispute what Palenick should be awarded for pain and suffering, as well as for other elements of damages.”32

In Rath, Elizabeth Rath was placed in the defendant’s nursing home.33 Forty-one days later, Rath’s son requested her discharge, and she was taken to the hospital the following day.34 Rath was treated for dehydration, pressure sores and a urinary tract infection.35 Rath’s guardian sued the nursing home pursuant to the Nursing Home Care Act and for negligence.36

Plaintiff alleged that the nursing home was negligent throughout the duration of Rath’s stay.37 While the nursing home admitted numerous negligent acts prior to trial, it limited its admission to the “approximate last week” of Rath’s stay.38 But, the nursing home “fl atly denied both direct and proximate cause.”39

The nursing home fi led a motion in limine asking the trial court to bar

Rath from presenting evidence of the negligent acts admitted by the nursing home.40 The trial court denied the nursing home’s motion because its admissions of negligence were limited to the last week of Rath’s stay.41 Since the negligence allegations extended beyond the scope of the limited admission, evidence of the nursing home’s negligent acts throughout Rath’s stay was relevant and necessary to determine the merits of Rath’s claim.42

The Rath Court went on to note that even if the nursing home admitted negligence for Rath’s entire stay, evidence of the negligent acts would still be admissible because the nursing home contested proximate cause.43 In fact, the court noted that the “denial of causation was central to the defendant’s presentation to the jury.”44

In closing, defense counsel for the nursing home argued that “any harm” caused by its negligence was “limited” and “relatively minor.”45 Defense counsel even argued that just because Rath was injured it “did not mean that

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Volume 19, Number 2 l Summer 2017 Trial Journal 33

defendant caused all of her conditions” and her injuries “would have happened whether or not she came into the nursing home.”46 The court noted that all of the evidence of negligence that the nursing home fought to exclude was relevant to causation, which was the sole focus of the nursing home’s defense.47

In Long, a taxi driver spun out and hit an abutment.48 The taxi driver’s passenger, Marjorie Long, injured her back.49 Long fi led a lawsuit against the driver and his employer, Yellow Cab Company, though the driver was eventually dismissed.50

The defendant cab company admitted liability, arguing because of that admission, evidence regarding the circumstances of the collision was irrelevant and prejudicial.51 The trial court allowed the driver and Long to testify about the circumstances of the collision. The appellate court held that the testimony was admissible because the defendant disputed that Long’s injury was caused by the collision.52 The appellate court noted that throughout

the trial, defendant tried to establish that Long’s injury may have been from a previous car collision or from chiropractic manipulation.53 The court held that under these circumstances, evidence of the collision and the pain plaintiff suffered immediately after the collision was relevant to the issue of proximate cause.54

The Long Court noted that “Bullard was a wrongful death case where the extent of the injury was not at issue.” Whereas in Long, the “extent of plaintiff ’s injury was critical to the amount of damages to which she should be entitled.”55

These decisions illustrate that evidence of a defendant’s negligence is relevant when proximate cause is contested. Even if nature and extent is the only dispute. And rightfully so. Under black letter law, proximate cause cannot be proven without evidence of defendant’s conduct. Proximate cause is ordinarily an issue determined by the trier of fact.56 There are two requirements for a showing of proximate cause: cause

in fact and legal cause.57 Legal cause presents a question of foreseeability.58

“Legal cause is established if an injury was foreseeable as the type of harm that a reasonable person would expect to see as a likely result of his or her conduct.”59 Thus, the defendant’s conduct is an inseparable component of proximate cause. That is why admitting fault, contesting causation and excluding evidence of negligence is such an effective – albeit nefarious – strategy.60

When this happens, the focus is shifted from the defendant’s actual conduct to how the defense characterizes the result of defendant’s conduct. It is easy – if not second nature – for the defense to characterize this result as “relatively minor,” just like the nursing home’s lawyer in Rath. But, negligent conduct itself is less susceptible to dilution. Conduct is either negligent or it is not. So, when a defendant “admits liability,” it is important to polarize the defendant’s position on proximate

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34 Trial Journal Volume 19, Number 2 l Summer 2017

cause. If causation is contested, evidence of defendant’s negligence is necessary to prove a required element of plaintiff ’s case. Even if the defense is only contesting nature and extent or the amount plaintiff should receive for pain and suffering.61 Under black letter law, evidence of a defendant’s negligent conduct is required to prove the element of proximate cause just as this evidence is required to prove the element of breach. There are several potential methods to polarize a defendant’s position on proximate cause in an admitted liability case. Every effort should be made to polarize the defendant’s position before jury selection. Such methods include:

• Force the defendant to take a fi rm stance on causation in the Statement of the Case. Causation is likely to be disputed here. • If the defendant has a medical expert, causation is at issue. Even if the defendant expert only contests nature and extent, or if the defendant contests the amount plaintiff should receive for pain and suffering.62 • Force the defendant to identify which I.P.I they want to offer: 23.01A Admitted Fault Only or 23.01B Admitted Fault and Causation. Even if the defendant offers 23.01B, the admission of causation may be limited in scope to a particular injury while still contesting nature and extent. That position still opens the door for evidence of defendant’s negligent conduct. • If a defendant did not clearly state in his or her answer that he or she “desires to contest only the amount of the damages,” as required by 735 ILCS 5/2-610(d), it opens the door for evidence of a defendant’s negligent conduct. • Keep in mind that even when a defendant admits that their negligent conduct proximately caused an injury, but contests the

amount of pain and suffering caused by the injury, Evoy suggests evidence of negligence is still relevant.63 • As proximate cause is a question of fact, use Supreme Court Rule 216 requests to admit to seek admissions that the subject occurrence proximately caused plaintiff ’s injury. Defendant’s response will provide clarity on the issue of proximate cause whether admitted or denied. The requests can also be used to seek an admission that plaintiff ’s injury is permanent.64 While defense attorneys often claim that these requests seek legal conclusions, “a request for admission of a factual question that might give rise to a legal conclusion is not improper.”65

The next time a defense attorney attempts to use Bullard to exclude evidence of negligence while contesting causation or nature and extent, remind the trial judge how Illinois courts have consistently interpreted Bullard for more than 30 years. “Bullard limits itself to instances where there are no questions about the extent of an injury attributable to an occurrence.”66 Plaintiff attorneys would be well served to raise these issues with a trial court that may be inclined to routinely grant a defense Bullard motion.

Endnotes1 E.g., Watson v. Fischbach, 54 Ill.2d 498, 503 (1973); Wilson v. Chicago Transit Authority, 118 Ill.App.3d 714, 719 (Ill. App. 1st Dist. 1983).2 Rick Friedman & Patrick Malone, Rules of the Road, Trial Guides, 2006. 3 Rick Friedman, Polarizing the Case, Trial Guides, 2007.4 I.P.I. 23.00 Series, Civil, Notes on Use.5 102 Ill.2d 505 (1984). 6 Id. at 509.7 Id.8 Id.

9 Id.10 Id.11 Id. at 510.12 Id.13 Bullard v. Barnes, 112 Ill.App.3d 384, 392 (Ill. App. 4th Dist. 1983).14 Id.15 Id.16 Id.17 Bullard, 102 Ill.2d at 519.18 Id.19 Id.20 430 F.Supp.2d 775, 780 (N.D. Ill. 2006).21 374 Ill.App.3d 536, 541 (Ill. App. 5th Dist. 2007).22 137 Ill.App.3d 324, 328 (Ill. App. 1st Dist. 1985). 23 Evoy, 430 F. Supp.2d at 779. 24 Id. 25 Id.26 Id.27 Id.28 Id.29 Id.30 Id. at 780.31 Id. at 780-81.32 Id. at 781.33 Rath, 374 Ill.App.3d at 537.34 Id.35 Id.36 Id.37 Id. at 539.38 Id. at 537-539.39 Id. at 540.40 Id. at 538.41 Id. at 539-40.42 Id.43 Id. at 540. 44 Id. 45 Id.46 Id. 47 Id. 48 Long, 137 Ill.App.3d at 327. 49 Id. 50 Id. at 325.51 Id. at 328.52 Id. 53 Id. 54 Id. 55 Id. at 328-29.56 Crumpton v. Walgreen Co., 375 Ill.App.3d 73, 79 (Ill. App. 1st 2007).

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57 Id. 58 Id. 59 Id. 60 Thanks to ITLA and STJL member Bruno R. Marasso for his frequent apt use of the word nefarious. 61 Evoy, 430 F.Supp.2d at 781.62 Id.63 Id.64 Troyan v. Reyes, 367 Ill.App.3d 729, 739 (Ill. App. 3rd Dist. 2006).65 McGrath v. Botsford, 405 Ill.App.3d 781, 790 (Ill. App. 2nd Dist. 2010)66 Rath, 374 Ill.App.3d at 541.

Ryan T. McNulty is an attorney at Schiff Gorman LLC in Chicago.  His practice focuses exclusively on representing plaintiff s in personal injury, medical malpractice and legal malpractice cases.  He is a member of ITLA, American Association for Justice, Illinois State Bar Association and Chicago Bar Association.

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