expert testimony should be required in any case where the plaintiff is seeking recovery for negligent infliction of emotional distress that expert testimony would provide evidence that the emotional distress in fact severe and it would also provide testimony that it was in fact caused by the conduct for which the defendant was found liable so not only would  testimony that the distrust a severe and caused by the defendant's conduct but also give some analysis to the jury regarding the nature and extent of the injury such as diagnosis and prognosis at a minimum expert testimony should be required where a fair question as to cause ation is raised on the avid and such as where as in this case there are multiple possible causes of the injury or where is here the emotional distress is linked to death or an injury that the defendant america cause in this case two events occurred question of expert testimony by motion or how was that raised for our we raised it for a motion for directed verdict at the close of the plaintiff's case also at the close of the evidence and in the post had to prove that there was a psych psychological injury that expert testimony was not required and so that case is different in this case because here there is compensation being awarded and also the distress emotional distress case has to be severe and also there was no question as to cause station in hudson here there were two things that could have caused severe emotional distress and had sent there was no other testimony except that the fact that the defendant had tried to pull the victim out of the home was a cause of her emotional distress so we don't have here in the hudson multiple possible causes corgan is the leading case  negligent infliction of emotional distress and that's a pleading case what this court said in court again is that we're going to modernize tort law and get rid of some of the artificial barriers to recovery these these barriers were in place because of the imprecision that's inherent in awards for emotional distress so corgan said that we're we're going to get rid of these barriers because we understand that precision is there but the jury will be assisted in evaluating emotional injury through the testimony of psychologists and psychiatrists and that the field of psychology and psychiatry has advanced to the point that these emotional injuries can be explained to the jury psychological testimony morgan is a counselor a fair rerecording mr a that the portion that you're talking about dealing with expert testimony was an acknowledgment by the court that pushing it to the portion where you think oregon says that expert testimony is required i think we've said that according contemplated expert testimony we agree with you that corgan doesn't say it's required in every case it doesn't say it's not required it's a pleading case right because the protests i think that because there was a severe emotional the severe emotional distress would result from the death of the fetus and it could possibly also result from a delay in delivery because there's those multiple simultaneous causes that it become go it goes beyond the ken of the jury beyond the met the understanding of the common juror and it becomes a medical question and  paul said that when the the emotional distress is inextricably linked to the death of a person that the defendant's not responsible for if that this was even the second cause was the  to the death the deceiving as here the doctor goes seanie was not responsible for the death of the child not responsible for the emotional distress resulting from losing the baby because those are inextricably related under paul expert testimony would repeat be required in this case just didn't treat her properly for the injury the court said that the cause that while it's clear that the plaintiff experienced mental suffering the cries ation of such an injury is not within the common knowledge of a person lacking that of training and so hudsons has also that expert testimony maybe he required in some cases and it's our position that this is a case where it should be required or are you asking for a rule that instructions of the jury focus on that one cause the jury had to have competent evidence as to causation in order to follow that instruction so if it didn't receive competent evidence it would have made had to sit a determination just based on speculation assuming that this is a complicated medical issue requiring expert testimony concurrently or when you have an emotional injury that's coupled with a death or an injury that the defendant's not responsible for they don't see any cases that say even in that case even then extreme case expert testimony is not required so the decision below is the only one that we're aware of that holds that that one causation is that issue and the jury is qualified to determine and to distinguish between the emotional distress caused by the death of the injury and that caused by the conduct for which the defendant was held liable favor the hospital on the wrongful death claim and have awarded one hundred seventy five thousand dollars on the intentional infliction of emotional distress claim against the hospital so twenty thorton recovered a hundred seventy five thousand dollars against the hospital under the single recovery world where a jury makes a determination of damages under a stop by the verdict that adjudication operates as a limit on the amount of damages that the plaintiff can what if that was your thought of what the appellate court found that the defendant failed to allocate the hundred seventy five thousand dollars and therefore defined it wasn't titled to assad so we have two arguments related to the hundred seventy five thousand again your honor it's the adjudication that's operative for purposes of the single recovery rule but there was after the verdict was entered the plaintiff entered into a settlement with the hospital and because of that adjudication and that final judgment that was never vacated that that serves to limit the recovery to one hundred seventy five thousand dollars and then assuming that the plaintiff had the right to proceed against the defendant for the hundred seventy five thousand dollars and then if defendant couldn't prove that satisfaction then the plaintive could recover that hundred seventy five thousand dollars against the defendant and so  we we have here so first single recovery role to apply we need a single and visible injury which we have here the plaintiff suffered one event where she where the fetus was protruding and she had to wait for delivery and the case is looked at in applying the rule was the injury it didn't happen all at one time and here there was just one time that she was waiting for the delivery and so we have a single indivisible injury because of that and also because  and also there's a we know there's a single indivisible injury because that's how the plaintiff treated it in the first trial in the first trial the counsel argued to the jury what we had what the defendants plural did here in making her wait for an hour and ten minutes is outrageous and therefore he treated it as a single indivisible injury at that time and the jury verdict form showed one line for the recovery of emotional distress so because of that adjudication because that judgment which is never been is akin to a sound off and because the plaintiff once they elected to treat the injury as a single visit indivisible injury couldn't change the theory later because of the adjudication there was a settlement but the terms of the release say that the the payment of one hundred seventy five thousand dollars constitutes payment in complete satisfaction  judgment and selo i doubt that a defendant should have to show more that than that the judgment was paid in order to show the allocation in order to show that the hundred seventy five thousand dollars to be applied to the judge equal to the judgment the judgment and the payment were equal and the defendant should have to do more than rely on the express language in the release showing that indication that the judgment was paid also under patent where there are separate claims covered in the release it's not the defendant's burden to prove the allocation it's the plainest the plaintiff could have alec if the plaintiff wanted to try to allocate the hundred seventy five thousand dollars the plane of credit at the time that the judgment was it that the agreement was signed and because different claims are involved here we have wrongful death claim and the emotional distress claim it should be the plaintiffs are not the defendants and given that the judgment was four hundred seventy five thousand dollars and the payment was four hundred seventy five thousand dollars even though it other claims were included in that release and given that they really said that the judgement is paid the defendant met his very of allocate a valid case of proving the allocation and not only that it was the or the doctor seen wasn't a party to the release and so say chuck took that same language and said you know the other parties couldn't decide the legal fact of a sad off the other i think the plaintiff's expert testified when the patient right to the hospital at six thirty five there was a comment to the doctor and the plaintiff's expert testified that he had enough information at that time to come to the hospital it was a question of fact because dr gary sinise expert testified that he acted appropriately in prescribing medications and instructed nurses to take certain steps so it was a question of fact whether he should have left at six thirty five if he had enough information at that time present expert testimony it's our position that such a rule is not supported by decisional law in the state of illinois nor is it supported by the record in this case ironically this argument this request that the court make this bright line rule is based purely on counsel who are laypeople it is based on their interpretation of the emotional testimony that happened in trials they're offering their own interpretations of the evidence of tony thornton's testimony it's based on counsel's interpretation of a record in this case that contains not a single objection not a single objection at trial to the testimony of tony thorton there's uncontroverted evidence in this case that was presented through tony thorton about emotional distress the appellant requests that this court make a finding and hold that psychologists psychiatrists and now even social workers according to their briefing must provide testimony in every case to establish emotional distress yet this record contains nothing not an affidavit no scientific or medical data no research not a single opinion from a psychologist from a psychiatrist from a social worker that indicates that a layperson would be unable to i would the testimony that there's no question that there was a death of a baby and that there was horrific circumstance that followed that so i guess in that in that respect there are there were concurrent things that were going on without point out about that and what's interesting about the argument here is that i went back and looked and since the lady hundreds in the state of illinois in every wrongful death case until recent legislation a jury has been required to decide the difference between grief and sorrow evidence and evidence of loss of society so in every single wrongful death case and this state until recent legislation juries have decided these what they would call concurring possible causes because you have grief and sorrow in a wrongful death case and a jury is is instructed and was instructed in this case you disregard that it's not compensable yet witnesses take the stand and they cry and their emotional and they have a loss of love and they have a loss of affection and guidance and comfort  all those things in every wrongful death case so i guess what i would say is that if there are concurring concurring hasa bull causes here it happens in every case in every case involving emotional distress they want  adopt a rule and it's really a of a backdoor way of let's have a bright line test they say we're causation is an issue every witness who takes the stand every person who walks on this earth has emotions every day so in every case you have a causation issue as to what caused the emotional distress what i'll point out for you in this case is that when we asked tony thorton questions at trial we didn't ask her if she was grieving we nester she missed her baby we didn't ask her anything about the fact that she now does not have a second son we asked her specific questions very pointed questions about what emotional distress do you have from that hour and ten minutes when she sat with her baby's head stuck in her vagina and the body hanging out that's what we asked her question tony as a result of you being in a hospital bed waiting in bed for that hour and some odd minutes with your baby protruding from you i want you to tell the liaison joan the jury what your emotional state was in the months  years following that she says i was depressed i couldn't eat i couldn't sleep all i thought about was laying that there for that hour in ten minutes holding my baby question how often would you have those thoughts all the time all the time i thought of suicide it was so horrible i didn't know how to contain myself that's all i would think about that's what the record page fourteen thirty one page fourteen thirty two followup question tony at the present time can you explain to the ladies and gentlemen  jury what your emotional state is as a result of being left in a hospital bed for over an hour with baby jason protruding from you answer i think about that so much i remember it like it was just this morning there is after the trial and this testimony i just read you came in without an objection there was no objection that tony jordan wasn't competent to testify there was no objection about the single injury rule there was no objection that that this was really grief and sorrow evidence in fact in fact the defendant himself stood up in front of the jury waving a hospital record from a visit that tony had to st joe's hospital they put all that evidence in the record and i sat and listened to it and they now claim that that was really evidence of grief and sorrow when the jury was specifically instructed in this case that grief and sorrow was not compensable and it was not to consider it so they create these straw men that they now knock down and say look that that that was grief and sorrow evidence they put it in the record this issue about causation i do i want to read this to the court we now after the trial we have an issue of causation that there are there are these two possible causes defense counsel in his closing argument said this quote record page eight hundred twenty six i have no reason to think that this horrific experience would not be distressing now defendant talks and lot of double negatives in this case all or take them out for a take the two negatives out of that here's what he said i have reason to think that this horrific experience would be distressing that's what he told the jury he said he also said this to the jury and this is at the record page eight hundred twenty seven quote this is defense counsel i am in no way minimizing in no way minimizing that this is a horrible experience for anyone to have gone through i cannot in good conscience stand up here and even pretend to tell you that he goes on he says quote there's no question she room yes and that that testimony came from dr charles byrd our expert it was just that his testimony was i don't have a right here from me we cited in our brief i can actually i can see in the priest but i just don't recall the actual verbiage i know his response to the question is that's why i'm here he was asked if the delay in delivery was a violation of the standard care he said yes it was not a violation is staggering the deliberately block inability of the call that's what the record says in black and white page a five hour panic seven am we know that that time there's was undisputed a trial but there was an obsessional emergency tony thorton was six centimeters with opposing bag she needed a doctor at seven am and dr does seem to believe his house and in fact his testimony trial was that he didn't even know about the seven o'clock call even though it was in black and white in the medical records at seven o eight am there were there's another document a six of our brief and the phone calls there was nurse testimony from from nurse wilhelm me that at that time her water broke they did a bad smell examination and found the baby to be a footman preach this baby was coming feet first they had an returned a phone call you'll see a yes yes next to both of those and you'll see the time at seven am this doctor could have bet this hospital and this baby was still alive that's would be out in its niscayah show so the emotional distress in fact that the jury instruction on emotional distress dealt only with that period of time that the baby was protruding from tony's which i know and by the way to answer the question is an hour and ten minutes she sat there never that position for an unreasonable amount of time so not only were the questions that were asked of tony thorton very directed toward that hour in ten minute period but the jury instruction was very very focused and this jury was presumed to follow these instructions i will submit to the court that all of this after trial all of this after the fact thinking up new theories coming up with new case law we said we were at trial and we relied on the court decision which you take all the negatives out of what they say there is no you cannot point any language in corgan where it says an expert is required in fact i think the reasonable reading of that is to the contrary that we have not lost faith in juries to decide these kinds of questions and thornton's case and the facts i've been involved in this case for eight years and these facts are still shocking still shocking to this day and we put them here and at this stage of litigation they're in black and white and they're cold but two times i sat and listened to tony thorton testify her emotion was palpable her distress obvious this is exactly the case that establishes why there should be no line rule there should be no arbitrary rule is required to establish emotional distress it certainly was not necessary in this case counsel a couple other points counsel talks about the settlement that we entered into after the first case and twice here today she says they entered into a settlement but the single injury rule still applies the only way you can reconcile that argument would be to say that the contribution act which specifically permits settlements against multiple toward freezers for a single injury the only way to reconcile this argument that once there is a judgment the single injury rule applies that means that the contribution that you can never have a post a post verdict let's certainly not the war on illinois so we settled this case with the hospital they wanted out actually in retrospect it looks like they were pretty smart we won the case on appeal we tried it again and we got a verdict again so the settlement of the first case was clearly between multiple parties the nurses won the release they'd been sued and visually the hospital wanted to release and they got released it was multiple claims actually there were two plaintiffs involved in the case you see in the record that the check that was written for one hundred seventy five thousand dollars it wasn't the tony thorton individually it was also written to be a state wide because the estate had wrongful death claims the estate had survived a lack claims multiple plaintiffs multiple defendants multiple theories of liability all extinguished for one hundred seventy five thousand dollars basically in their brief that the that the appellate court in this case participates in a fiction that it's and then a second case was filed against ford motor company for products liability and that case was resolved and then a separate third case was filed for medical negligence and the court says hey look under these circumstances the third defendant who wasn't even a party to the first two lawsuits is not saddled with the burden of allocating the court the next year the court decides the pascal decision and distinguishes patton on that very ground where separate lawsuits are filed and the defendant is not even a party to the lawsuit he does not have the burden of showing the overpayment that's not the case here and so the appellate court properly found that they weren't entitle to the sad off island with this and i know i'm repeating myself but big the case of tony thorton was a case where the jury didn't need an expert to tell them that she suffered from emotional distress defendants even knew that she suffered emotional distress and they pled to the jury in their closing argument that it just wasn't worth that much money even they could figure that out and this case is exactly  happened to tony thorton on august twenty eighth of the year two thousand was horrific never again do i want to see a fact pattern like this this is exactly the case that says in this court there should be no arbitrary requirement there should be no bright line rule that we need experts to come in and explain to people the ordinary concepts that all people understand just like tony thorton testified in that case couldn't eat couldn't sleep i was depressed thought about suicide i think about this all the time her testimony about how to this day she can feel the baby stuck in her there's no need for an expert in this case and there's no need for this court to establish a bright line rule thank you feel it as i understand part of your argument is that there are these two will will call in potential causes of emotional distress the death of the child and the waiting for the hour with the child in inner protruding from a body that at least part of it yes earned and and that expert testimony is somewhat necessary to indicate where if there is emotional there is a motional distress and one of the causes could be the cause that was related to the jury here what difference would it make if someone cut are you talking or are you making in a portion an argument of sorts are you saying that an expert was necessary to say that yes she has emotional distress eighty percent of it is related to the death and twenty percent of other there is a real related to this incident because it doesn't have to be under a case law right it doesn't have to be the only cause of the injury it can be any cause of the engine that's my question all right ron are correct it can be a plane it has to prove a cause what the plane  testified here to isn't she did not emotional distress generically she testified i suffer from depression she testified i had suicidal thoughts seven months after this injury so in a minimum she capital evidence that more probably than that the delay in delivering the deceased fetus was a cause of depression and a cause of suicidal thoughts seven months later she was compensated for those for those feelings and those emotions and when you have concurrent causes of a death of a child that the mother was looking forward to she couldn't help and she she couldn't save him and at the same time a cause of suicidal thoughts and it is i think of this trial with experts on both sides i'm sure the plaintiff would have had some expert to say you know that's or there could be a cause and you admit it all it has to be is a cause of expert on the other side how how in relation to this case when you have the death of a child and the graphic nature of the injury that was presented to this jury how is there above the can of the average  to say that could be a cause of depression well because it's a complicated matter call question what causes depression or causes suicidal thoughts or ideation especially when it's  come in and talk about the other cause you know being the death of a child cause this and then there's competing causes but what we have under case law isn't finding out which cause was more attributable attributable to the emotional distress it's whether you can have two concurrent prizes as you readily agree krug you're just saying that expert testimony is necessary to relate that in this particular case the incident involved w a cause of the emotional distress that she that she was compensated for that given that depression and suicidal ideation are complicated medical diagnoses and they have multifarious causes and we all know that there's lots of causes that can be involved and when she's testifying that you know i leave my bedroom the last thing i see is the urn of ashes on my dresser she testified to that for that for a conclusion by the la jury that a cause of that was the delay in delivering the child as opposed to the loss of the child would require expert testimony otherwise what we're you know the concern would be there to say this is what happened in this case i am not trying to advance your honor that it could never be a cause a suicidal thoughts or depression i'm trying to advance they have told with with me coupled with what happened and that it would take an expert to sort out the the causes and what was in fact a cause of the depression i'm not trying to say it could never be i'm just saying we need to and it's in motions for directed verdict that's in the record and we have we sank cite the references that under the single recovery role playing a says well we have a subtle man and so the court can just ignore the fact that there's a final judgment that was never vacated and we're we're just going to ignore the fact that there was an adjudication by the jury and we're just going to go by the terms of the saddle meant and that's it in say check there was the the amount of the judgment paid by the insurance company the only differences in this case was with the payment was within thirty days in say check that was beyond thirty days but in say check the court still in force single recovery role and so that's the same situation that the plaintiff's recovery be limited to one hundred seventy five thousand dollars under the single recovery rule and alternatively that the i guess an conjunctive plea that the set off one hundred seventy five thousand dollars be allowed to the defendant thank you thank you counsel case number one zero seven zero two a