before we start because joe gordon would have been very unhappy with both sides here you failed either side to really follow supreme court rule and as  side and the most relevant thing in this whole case we got two days ago that being the post trial motions in the record on and in reality now is joe gordon would say he was stuck here like the cubs he came to play which he didn't play so i'm not going to see any more it other than i'm quite surprised because both firms here have great reputations and this is quite unusual  just wish to say that i want you to emphasize the post trial motions the rest of the matter the facts and what went on otherwise is really not relevant it's post trial arguments that you made i think you have to tell us why this is or isn't intertwined or why it was not a conflict decision if i might your honor the the post from motions and all the post by briefing have been included in the supporting record that we filed in conjunction with the petition for leave to appeal not in anything we did it was my understanding that we had we got nothing a supplemental record i personally and confused between which is a supplemental record and which is a supporting record but needless to say i am confident that all the material in her contained in one or the other now i'm just saying that makes it very difficult for the you know people working on this case before we even see it and i certainly we certainly appreciate that your honor it was our understanding that the supporting record would be part of what this court would be provided and that's why they were all three or six provides for a supplemental record write a vision to those material and so on until we get this we did not know much about what happened in the supposed trial much and i appreciate that your honor i it's the case also that and so we received the order from the court approximately a week ago we were not aware that there was anything the court was missing so we certainly apologise for any role that we might have had in that but it was our understanding right now i just want to say i want to just add something since she was using the royal we i think it's also including me in this and both of us what's relevant is still what hogan decided and how he got there which you are again and that's what you want to hear but rather i have a different point of view but that's not unusual thank you so in aid we usually may or may not ask a lot of questions if we do then we give you extra otherwise it's the normal times and another thing is that mr howe we did not jury twelve good men and women who saw the witnesses testify heard the instructions about the elements of the plaintiff's case deliberated over the evidence and return a unanimous verdict nominally in favor of the plaintiff but a warding no damages and what's at issue here is whether those features of the jury's verdict verdict form may can be reconciled the trial judge erred when he concluded that they could not be in the mistaken belief that a jury cannot return that verdict form unless it also awards damages but the supreme court rejected that proposition nearly half a century ago recognizing that a jury verdict against a defendant that awards zero damages is an acceptable way of expressing a verdict in favor of the defendant on the issue of proximate cause and by failing to construe it in that way the trial judge failed to give the jury's verdict the deference it deserved because the jury's verdict here can be construed in a manner that both the law and the we're saying that the jury could have viewed it that way there certainly is no dispute in this case that the evidence permitted the jury to reach that conclusion and we can't know specifically what the jury did find but we do know that the evidence permitted i  it can be interpreted though as several courts of this state have held that a verdict that purports to be for the plaintiff but awards no damages is interpreted bowl as a verdict in favor of the defendant as to the issue of proximate cause that's that's a decision that the supreme court issued as far back as one thousand nine hundred sixty eight in flint versus vansickle where it rejected the idea that a verdict in favor of the plaintiff is necessarily a finding that proximate cause has been proved and the fourth district echoed that reasoning in the christ case that we have emphasized in our briefs regarding a judgment in favor of the plaintiff and against the defendant and yet finding that defendant not liable for any damages in the fourth district  echoed the flynn case from almost thirty years earlier in finding that when the jury returns or verdicts in that form using verdict form like the verdict form a here finding liability  had the option of not finding all the images for every r t and how the words they found for someone not for others and also they were answered the question  difference as it to this case those are additional support for a conclusion that the court was already headed toward in in the kleist case the relevant fact is that the jury did find against the that defend verdict form that spoke against that defendant it is true there were other defendants in that case who were the subjects of findings of damages and were held at to be responsible liable for damages proximate cause evidently was proved against those defendants but the first district concluded that the the lack of a damages award as against one of the defendants was not inconsistent as to that defendant and it's it's finding in that regard is limited to that defendant it regarded the conclusion of the jury in that case as something that could be construed as a finding that the the damages suffered by the plaintiffs were not proximately caused by negligence that had been found as to that defendant and that's precisely the case that we have here we have a verdict that can certainly be interpreted more than one way and that the the floor in the trial courts reasoning in this case is that his principle error was to conclude that the jury's verdict was internally irreconcilable despite the reasonable hypothesis that could explain it as being a finding in favor of the defense on proximate cause especially because that explanation is cases that rely on it as well such as and i believe this court relied upon it in chrysler as is one of the cases in which the it found that in a word of damages is not necessary even when those damages are proved and even when the defendant's negligence is a step list the connection of proximate cause is still necessary and even if there are proven damages and established negligence there is still a basis for a finding and no damages as proximate cause in favor of the defendant is that with linda i believe plane did that yes that was that was the case in which a two week old infant had been hit was killed in a car accident there was a issue of whether there was a presumption as  loss as a result of that death and the supreme court held that there was not and that it was not inconsistent for a jury to return a verdict without defining as to that damages element even despite a presumption in that case we  real problems cases we don't know what the jury meant by that that's the problem we don't know what we don't know whether they said actually com the way that they simply made a mistake we don't know we can't know what they found and what they thought but what we do what we can know is what they could have and we cannot reverse and if we found no reasonable person would move away he did but the judge how would you tell us how would he write this up no reasonable person would do it that hogan did i'm glad you asked that your honor because what the judge me it's although we're constrained by what the judge did the judge is constrained by what the jury could have done and the illinois law is a long history of seeking to interpret jury verdicts in a way that are internally consistent if at all possible if if any reasonable hypothesis can support the verdict so that the judge is certainly has discretion to determine if a verdict cannot be reconciled internally or cannot be reconciled with the evidence that is within the judge's discretion but the judge abuses his discretion if there is more than one reasonable hypothesis and one of those reasonable hypotheses is consistent with what the jury has done in this case there isn't any dispute that the jury had within its power the ability to return a verdict in favor of the defense on proximate cause proximate cause was a hotly disputed issue as to whether the defendant had caused the the decision to die based upon what he did or did not do wrong on the other hand if it seedings own preexisting conditions that caused her demise so the jury could have returned a verdict either way based upon what the evidence was in this case there is there is there is a law going back at least as far as place and arguably as far back as one hundred sixty eight in flint that said that it big if a verdict can be interpreted that way if it can be interpreted as finding for the the defendant on proximate cause even though it purports to state for the planet then it should be interpreted that way and that is where the judge abuses his discretion we're this is not a situation where the judge is charged with determining what the jury should have done or finding that it's that it 's a product was wrong because it should have done something else it's not a should that that that the judge it ought to be concerned with it's a could it's what rise permissible within the evidence and as i said i don't think th will dispute me on this there was evidence enough to enable the jury to return a verdict for the defense on proximate cause now certainly that was a hotly contested issue certainly he argued that it should have returned a verdict for the plaintiff on proximate cause but it was a hotly contested issue and it was it was an issue on which there was evidence to enable the jury to find for the defense given that the jury could look down for the defense spaced on what the evidence was on the issue of proximate cause it was abuse of discretion for the trial judge to conclude that the jury could not have returned a verdict on proximate cause so to counsel do you think it's equally likely if we were to engage in probabilities i'm not saying that we should but if we work what is the most likely thing what's the most likely alternative to your scenario so one scenario is they meant to say we don't think these injuries are approximately caused but they pulled the wrong verdict form they ignored the jury instruction that said if you do not probable proximate cause you should not even get to damages they made both of those mistakes that's that's your theory in that what they meant to do was do a defense for it but isn't it just as possible that as justice house said that it was some confusion as to what they were supposed to do or as in i think the all fantasy case there maybe was just a compromise between the jurors who are debating this mean any of these things could equally have happened right even if it's conceivable that other things were possible it's not inconceivable that the jury meant to do exactly what it did so you think the trial judge under the law has a duty if he can find a reasonable hypothesis even if that reasonable hypothesis includes the fact that the jurors made serious errors in following the jury instructions that he should embrace that hypothesis then that he didn't understand what it was supposed to do and returned a verdict it was internally inconsistent quite specifically rejected the what he called overly legal mystic reasoning or un realistic and  case in which which is distinguished from this one because in that case there was no dispute as to proximate thoughts the issue there couldn't have been there it couldn't have been a situation where the jury  decided the proximate cause had been proved if i remembering it correctly that's that's the distinguishing factor there and the certainly there are going to be cases in which a verdict form like this might be inexplicable based upon what the evidence is if proximate cause for instance is in dispute or i'm sorry if it is not in dispute if it's been conceded then clearly the jury would not be able to find it gets and then that it's not hard to imagine a case like that where the principle perhaps the only disputed issue might be whether the undisputed acts of the defendant were or were not a breach of the standard of care so if there had been the case here for instance then a finding that the jury's finding could not be reconciled with itself because there would be anyway to say well this jury found in favor of the defense on proximate cause there might be other situations where there were liability is judge disputed other than the post trial motions i in reading all of the facts i i disagree with you totally i did not find only one doctor that being i think his name was go he no one and i don't understand this you take all of them none of them other than one was willing to give a reasonable degree of medical certainty the others all he was clearly there and i can't imagine they didn't see it and i think that maybe basically the only error in this case was that as the moment about the manic o and the funeral expenses they said they were paid well somebody should qualify that by saying they were paid by the estate and that would have been the end of it we ration had occurred oh it's clear in the record there was no here no error in that person internally let's put it this way i wish i could argue this case to the plain and i wish i could argue the it's because there is no way that there isn't proximate cause in the only person that might have in the alternative which would give you some samples is the guy that ordered all this who was way out evidence to the contrary that doesn't make a difference to the jury's verdict here so long as there was some evidence something that would enable the jury is as dr bill sousa's testimony did to say that that even though he wasn't sued and for the jury he was not and it isn't an issue for the jury for the plaintiff to argue to the jury or within the bounds of evidentiary rules it's an issue for the jury to resolve on its own i understand that your honor may feel very differently this court may fear is that what the jury found but we don't know for certain what the jury did find all we can know based on this record is what the jury could up found and they could have found based on the evidence placed before them that that doctor said that was negligent and that the plaintiff seven injuries but that she would have suffered those injuries regardless of whether the rain  badri and the court concluded such a verdict contains no basic error and in no way requires a new trial was or were undisputed damages in that case because there's there's no there's elements of the damages in this case that are disputed like los society but there's but there's damages there are clearly undisputed like funeral costs of medical bills certainly and so it would be one thing if all we had here was a loss of society in the for it was zero your argument would probably be a little difference but in this imagine that there were it was not no dispute that that there was damage that was lost claimed by the by the parties and certainly when when someone as in this case someone dies there are funeral expenses there's  certainly no dispute about that no way to challenge whether those expenses were in fact incurred would have had the legal responsibility of the defendant because they were approximately caused by his negligence is a different issue entire and because flynn has held this long held never been overruled that that sort of a verdict is consistent and internally consistent and can be explained as internally inconsistent it ought to be we have history who is from law and head and more importantly it is consistent with cases that have followed it like a close decision like this court's decision into desk and chrysler cases which recognize that the way a jury's verdict can be interpreted if it's a reasonable hypothesis and this is a reasonable hypothesis that we've put forth consistent with lies that the jury simply didn't find proximate cause because the v can be interpreted that way in a way that respects what the jury did it should be interpreted that way that is not only consistent with the case law it's consistent with our system of jurisprudence and the respect and the deference that we give to juries you have to address any further questions of the court has any otherwise i wouldn't last at the court reversed the judge reversed the order granting a new trial and reinstate the verdict of the jury thank you judge smith justice smith said about focusing my attention on the post trauma however i think in order for this court to understand what happened in this case and i guess i'm the only witness to it right now a little history is is required and it's been that i hope you don't mind this is a case involving  so and they could not come up with a definitive diagnosis which goes to prove once again that medicine is not a science until it gets to the litigation stage it is an art and it is a profession so they called in several consultants one of those was dr sup let and dr supplied the consultation and i've attached that consultation to the appendix in my case because i think it's important for the court to see what transpired in real time they did a c t scan and this is know when they did the c t scan that's a non invasive procedure it's in there it's in the appendix it eighty three and in th appendix in this council p port the number one conclusion was extensive diverticulosis of the distal descending colon and sigmoid quite a colon and then at the end of the first conclusion talks about it cannot exclude an underlying partially and that's a very very important word in this context partially obstructing colon mansour really changes of acute and then at the bottom of his history he says it looks like it is probably from diverticular disease and then he says recommendation on not being cast properly will be done tomorrow and she will like y get a hernia repair now the defense has made a very interesting argument that there is a differential diagnosis of a cancer a mansour lesion now a cancer is generally referred to as a tumor a it's something that shouldn't be there and those are generic terms and soon as she saw and he concluded that it was probably from diverticular disease he could not me that's what our case is about it's not about didn't perform the colon on skippy wrong it's not about him doomed the instrumentation in the wrong way at that point in time amino had what they call a hot colon and you don't touch it you let it come down your week two weeks and they say that it was an emergent situation that they had to determine if it was cancer or not well if i challenge anyone to find the word cancer in this consultation note it doesn't exist and i didn't cross examined doctor  sublette on this very issue and i think it's instructive to understand i included it actually in the brief that pages four and five and i asked down he says documentation is not my best suit well and my question then is well this isn't a true doctor that if it's not written down it didn't happen isn't that true in medical records and the answer was that's what the insurance company likes you to think but i don't think that is necessarily how we think but you're in the i ask the question but can put in down your thoughts and the consultation report that's going to be relied upon by dr madison dr miller so so this isn't the true answer that's true how would they know that you were thinking what you were thinking if they didn't see what breach of the bill ok then i'll get in there is there is some question as to proximate cause do you believe in the book and let me ask you this do you do you believe that there was no evidence of no dispute is the proximate cause i don't think there was any dispute that the jury found proximate cause now that's a little slightly different answer i think the proximate cause was proven and i think that if you look but do you think there is a reasonable theory that it was not proven no mr howie argues that the jury listen to your expert but also listen to the defendant's expert he argues that evidence was presented both ways that the juries could zero damages and that the trial judge at that point had to take this verdict and see if you could reconcile that reasonably the say it was actually defense free and he said that if the judge could do that also i think he should've given us a new trial on the issue of damages only because we i was so convinced that we prove proximate cause now i tell you this is a this case is a mystery i think and all these cases that i have read especially christ but all these cases that fit as a trial lawyer they don't discuss things struction it's they were getting attached until i went to the instructions and the instructions are very clear in this situation and i'd like to go into them with you in explaining and they argued this in the post motion and then judge hogan was an wasn't actually he's retired was an excellent judge and he gave us a really good trial except he made a mistake and ordering a new trial in both different but eat it let me go to this issue of proximate secure concerned with the jury found for the plaintiff and against defendant and therefore they signed verdict form a let me ask you a question when i did  using two which does support your position because the other two were not used which could have been so i guess what i'm saying is you've honed in i don't know if they did cases and  mysterious to me how i didn't get them just awarded except she was eighty three years old she was living up alone independently she was a feisty  was an old italian mama and she had a life that was cut short and i cannot think of any i can't think of any reasonable theory end up telling you something will what about the theory that case that was fought on the issue of liability only and that there was no deviation from the standard of care because i'm betting it was medically required that doctor  doctors maybe all failed to do a second c t scan or an x ray well when the person hit twenty five thousand white blood cell right then and there and that's a red diverticulitis attack the plaintiff further claims that the negligence of the defendant was a production because of her injuries and death that means that the jury decided those elements exist and that's i look at the instructions and i think the instructions are king the instructions aren't mentioned in this case by the defense counsel the instructions in many of these cases don't go into it the kind of place case is totally distinguishable from this particular facts why is that it's because the judge made a mistake i'll tell you where didn't quite say the jury asked the question they sent out a written question a question quote if we find someone negligent do we have to have them pay a monetary amount if so what is the minimum amount and what is the maximum and then they have to do lawyers got together to see this communication from the dreary the council agreed the question should be answered is fouls if we find someone negligent do we have to pay him a monetary amount no that's where this mistake came about this is almost like a special interactive dork which is totally different than with the case we have here and then it said you should construct the instructions because your answer your questions are answered in those instructions and if you look at the instruction your honor that twelve home one says that there is factually off and then if you look at the burden of proof instruction the plaintiff has the burden of proving each of the following propositions they have to defend first the defendant acted to fail to act in one of the ways claimed by the plaintiff as stated to you in visa instructions and that in so acting or failing to injury is to their insta the plaintiff and they also were instructed and if you decide for the defendant you don't have to consider the question of damages and so they knew what been practicing for three years by that time and i would will wear of that state and that case was more about though the presumption of peculiar to us as opposed to these instructions and i just want to mention also i hope i've answered your questions about proximate cause and what the jury decided and contrary to what counsel is trying to do he's trying to rationalize and the roger call an inconsistent verdict and when this case was decided by the jury mr red in the night and judge hogan got up there and my argument at the end of th trial before briefing before anything i said this is an inconsistent frantic it cannot stand and that in some of the cases cited by the defendant in his brief three cases ok well in that i did want to point out the language a new trial is appropriate when the damages awarded are manifestly inadequate when you have thirty thousand dollars in medical and you have medical in funeral to thirty thousand hours entered by stipulation and they give you zero zero they are clearly inadequate and it is clear proved elements of damages have been ignored they have ignored the medical expense and funeral expense and  cases what they talk about is that the images and the negligence are intertwined in other words they're saying well if you have a motor vehicle accident and you've got damage there's a question of compared to falter this case doesn't have compared to froth so that the damages are succinct they're separate and they are separate from  the liability and this was the case for the my ability the mistral bendel didn't even contest the damages and night that's why i think that should be a trial only on the damages because it was proven if you look at the logical relevant instructions it's obvious that the jury found for the plaintiff and if they found for the plaintiff they found proximate cause i think you can say that as ormus was an absolute and you don't have to wonder about it you don't have to as councils open b says divine rights occurred here it's that it's still not in the cards kate that sets this tuned up case and then there's chrysler versus pain and suffering and disability the jury could not have consider all these damages that damage elements in the writing and its award and we dare for that trial court probably denied the motion for a new trial on the issue of damages and then the cases we hold that the irreconcilably inconsistent verdict requires reversal of the judgment in favor of surfy and counts one every man for retrial and liability as well as jury had a worded me twenty thousand dollars in medical and ten thousand dollars in funeral i probably wouldn't be here but they gave us nothing and that's what's inconsistent and different thank you very much for your time thousand dollars or thirty thousand dollars of the figures he threw out or or anything at all he's right we wouldn't be here because in that situation it wouldn't be possible to say that the jury might have found in favor of the defense on proximate cause in that situation  there would be no way to reconcile the jury's verdict but this is a different situation where we do have a case of a verdict that can be interpreted in a way that is internally consistent and consistent with cases like lice in fact i'd like to take a moment to address justice else's question to the plaintiff's counsel and change it a bit not not the question what is your theory as to why the jury awarded zero but more relevantly is there a reasonable hypothesis as to why the jury awarded zero also that's not the question we want to answer you've answered previously we thought you think so he cut it short we don't want to hear you go on for ever now we we've heard one whining here ok i don't want to hear a new argument and with with that said i i will stand on the argument we have made i would request that the court recognize the validity of the jury's verdict in this case and the way in which it can be and should be interpreted and for those reasons i would re reverse the order granting a new trial and reinstate the verdict the jury returned thank you but again i just wish to emphasize one thing we should not have been here this case should