2024 IL App (1st) 231510-U 

 SECOND DIVISION

 September 24, 2024 

No. 1-23-1510 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

JEFFREY S. GOLDBERG, ) 

) Appeal from the 

Plaintiff-Appellant, ) Circuit Court of 

 ) Cook County 

 v. ) 

 ) No. 2019 L 851 

M. SCOTT PECKLER, M.D., and ) 

NORTH SUBURBAN SURGICAL ) Honorable 

CONSULTANTS, LLC, ) Joan E. Powell, 

 ) Judge Presiding. 

Defendants-Appellees. ) 

_____________________________________________________________________________ 

JUSTICE ELLIS delivered the judgment of the court. 

Presiding Justice Van Tine and Justice McBride concurred in the judgment. 

ORDER

¶ 1 Held: Affirmed. Trial court did not abuse its discretion in adopting defense version of 

issues instruction and rejecting plaintiff’s proposed instruction.

¶ 2 After a surgery in 2012 to relieve persistent back pain, plaintiff Jeffrey Goldberg 

developed an abdominal hernia. He visited defendant, Dr. Scott Peckler, who recommended 

laparoscopic surgery to repair the hernia. In August 2012, Dr. Peckler performed the operation, 

but he accidentally cut Goldberg’s aorta, requiring an emergent fix. 

¶ 3 Goldberg sued Peckler and North Suburban Surgical Consultants, LLC in January 2019, 

alleging negligence against Dr. Peckler and vicarious liability against North Suburban. The jury 
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returned a verdict in favor of defendants. 

¶ 4 Goldberg appeals. He claims the court improperly instructed the jury on negligence, 

tendering an instruction that generally summarized his allegations of negligence, compared to his 

own proffered version, which delineated those alleged acts in detail. We find no error and affirm. 

¶ 5 BACKGROUND

¶ 6 We take the facts from the trial and, given the issue presented, we can be brief. Four 

witnesses testified: Goldberg, Dr. Peckler, and each side’s expert. This suit concerns an 

operation Dr. Peckler performed on August 10, 2012. The procedure involved making a small 

incision in Goldberg’s torso, then inserting the scope, or trocar, and performing the surgery. But 

while inside the torso, the trocar cut Goldberg’s aorta. 

¶ 7 The parties’ respective experts differed, of course, over their opinion of Dr. Peckler’s 

performance. Dr. Edward Felix, Goldberg’s expert, testified that Peckler deviated from standard 

procedures by placing the trocar in a place inside the torso that left him with little visibility into 

where he was cutting. Dr. Peckler had inflated Goldberg’s abdomen with carbon dioxide (CO2) 

to help visualize the free space inside. But once Peckler could not see the free space even after 

inflating the abdomen, he should have stopped the procedure, Felix said. 

¶ 8 Meanwhile, Dr. Peckler’s expert, Dr. John Alverdy, concluded that Peckler’s placement 

of the trocar was appropriate. And when Peckler realized that he had injured Goldberg’s aorta, he 

appropriately controlled the bleeding until a trauma surgeon could arrive. 

¶ 9 Dr. Peckler himself testified that, while he was performing the surgery, nothing indicated 

to him that he was moving the trocar in the wrong direction or in a dangerous place in the 

plaintiff’s abdomen. But during the surgery, the anesthesiologist told him that Goldberg’s blood 

pressure had dropped; Dr. Peckler then opened Goldberg’s abdomen and discovered the
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bleeding. He then stabilized the patient until a trauma surgeon arrived and repaired the aorta.

¶ 10 During a conference to sort out the jury instructions, each party submitted its own version 

of Illinois Pattern Instruction-Civil (IPI) No. 20.01, which explains the issues in a negligence 

case. Goldberg proposed an instruction that read: 

“The plaintiff claims that he was injured and sustained damage, and that the defendants 

were negligent in one or more of the following respects: 

(a) The defendants continued to cut and to advance the trocar inside the plaintiff 

when they could not discern the layers of tissue as they usually did and when 

the CO2 did not put a space between the wall of the abdomen and the top of 

the intestines.

(b) The defendants chose to insert the trocar the first time in the anterior-axillary 

line rather than another location.” 

¶ 11 Dr. Peckler’s instruction was significantly shorter: “The plaintiff claims that he was 

injured and sustained damage, and that the defendants were negligent in one or more of the 

following respects: Negligently performed hernia surgery resulting in injury to plaintiff’s aorta.” 

¶ 12 Dr. Peckler argued that his proposed instruction was a more succinct way of summarizing 

the issue without unnecessarily emphasizing the particulars of Goldberg’s argument. The trial 

court ultimately went with defendants’ proposed instruction but advised Goldberg that he was 

free to fill in the details of Dr. Peckler’s alleged lack of negligence during closing arguments. 

¶ 13 The jury found for defendants. Goldberg filed a post-trial motion for a new trial, arguing 

that the court gave the wrong jury instruction on IPI No. 20.01. The court acknowledged that the 

trial presented a “close case” on liability but denied the motion, stating that it did not believe that 

the choice of the one version of IPI No. 20.01 over the other “was either confusing or 
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significantly made a difference or was in error.” 

¶ 14 ANALYSIS

¶ 15 On appeal, Goldberg focuses on a single issue: the trial court’s decision to use Dr.

Peckler’s proposed IPI No. 20.01 issues instruction and not his. He argues that the instruction the 

court gave was too general, and that the court’s comments that the case was “close” in post-trial 

proceedings illustrates that this error was prejudicial and warrants reversal. 

¶ 16 Each litigant has a right to have the jury instructed in a way that presents the issues, the 

applicable principles of law, and their theory of the case. Dillon v. Evanston Hospital, 199 Ill. 2d 

483, 505 (2002). In a civil case, the trial court is required to use an Illinois Pattern Jury 

Instruction when applicable, unless the court determines that the instruction does not accurately 

state the law under the circumstances of that case. Schultz v. Northeast Illinois Regional 

Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). 

¶ 17 The tendering of instructions is within the trial court’s discretion. Mikolajczyk v. Ford 

Motor Co., 231 Ill. 2d 516, 549 (2008). On appeal, we ask whether, taken as a whole, the 

instructions fairly, fully, and comprehensively apprised the jury of the relevant law and claims.

Schultz, 201 Ill. 2d at 273-74. An error will warrant a new trial only when it results in “serious 

prejudice to a party’s right to a fair trial.” Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). 

¶ 18 We should emphasize at the outset that, while the circuit judge was considering which of 

the two proffered IPI instructions was the “better” fit for the case—the one most faithful and 

appropriate to the law and facts of the case and the easiest for the jury to understand—our task 

on appeal is different. On appeal, our job is not to pick the “better” of the two, but, as noted, to 

merely determine whether the instruction the court did tender, along with the others, fairly and 

fully explained the law and facts of the case. Schultz, 201 Ill. 2d at 273-74. 
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¶ 19 There can be no serious debate that the instruction tendered was an accurate statement of 

Goldberg’s allegations at trial. The instruction stated that Goldberg was alleging that Dr. Peckler 

“[n]egligently performed hernia surgery resulting in injury to plaintiff’s aorta.” That is precisely 

what Goldberg alleged and tried to prove. We do not read Goldberg’s brief as arguing otherwise. 

¶ 20 Goldberg’s complaint, instead, is that it lacked sufficient detail, that it gave the jury 

“carte blanche to speculate broadly if the defendants ‘[n]egligently performed’ the operation in 

any manner.” He argues that “[b]asic Illinois law requires that the [IPI No. 20.01] instruction 

specify the acts and omissions that the Court determines that the jury could consider to be 

negligent.” (Emphasis added.) Our review of the law, however, does not support that conclusion. 

¶ 21 The committee comments to IPI No. 20.00 favorably cite the 1953 decision of Signa v. 

Alluri, 351 Ill. App. 11 (1953), which held that instructions “should inform the jury of the issues 

raised by the pleadings in a clear and concise manner, and that this could be accomplished by a 

summary of the pleadings succinctly stated without repetition and without undue emphasis.” 

Committee Comments, IPI 20.00; see Signa, 351 Ill. App. at 19-20. 

¶ 22 In that vein, IPI 20.01 provides that the recitation of the plaintiff’s allegations of 

negligence should be “[s]et forth in simple form without undue emphasis or repetition.” IPI 

20.01. The Committee Comment to IPI 20.01 provides that “[a]n issue instruction must meet the 

standards of Signa v. Alluri [citation], that the issues made by the pleadings be concisely stated 

without characterization and undue emphasis.” Committee Comments, IPI 20.01. 

¶ 23 That is in line with the case law, as well, following Signa. See, e.g., Howat v. Donelson, 

305 Ill. App. 3d 183, 187 (1999) (issues instructions should be drafted “succinctly and without 

undue repetition or emphasis.”); accord Meister v. Henson, 253 Ill. App. 3d 619, 627 (1993); E.J. 

McKernan Co. v. Gregory, 252 Ill. App. 3d 514, 542 (1993); Jeffers v. Weinger, 132 Ill. App. 3d 
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877, 885 (1985). 

¶ 24 Indeed, another line of cases has noted the danger of too much specificity in an issues 

instruction: “ ‘ “explaining the ways in which [an] issue could be proven as part of the issues 

instruction gives undue emphasis to the plaintiff[’s] theory.” ’ ” Lewis v. Cotton Belt Route—

Saint Louis Southwest Railway Co., 217 Ill. App. 3d 94, 112-13 (1991) (quoting Robinson v. 

Greeley & Hansen, 114 Ill. App. 3d 720, 729 (1983), quoting Herbolsheimer v. Herbolsheimer, 

46 Ill. App. 3d 563, 568 (1977)). 

¶ 25 We note some irony here in that a plaintiff is complaining that the jury was given “carte 

blanche to speculate” as to the theories of negligence, when it is typically the defendant who 

complains that the issues instruction did not sufficiently rein in the jury. For example, in Lewis, 

217 Ill. App. 3d at 111, the defendant complained, as does Goldberg here, that the issues 

instruction “submitted general rather than specific allegations of negligence,” allowing the jury 

to go beyond the plaintiff’s theory of negligence in rendering its verdict for the plaintiff. 

¶ 26 The allegations of negligence in that instruction, even more general than ours here, were 

that the defendant “failed to provide the plaintiff with a reasonably safe place to work,” “failed to 

provide sufficient personnel for the plaintiff to conduct his work in a reasonably safe manner,” 

and “negligently struck the plaintiff with their cherry picker.” Id. This court upheld the 

instruction, emphasizing that the issues instruction should present “a summary of the pleadings” 

(emphasis in original) and warning of the danger of too much specificity, which might unfairly 

emphasize the plaintiff’s case. Id. at 112. 

¶ 27 So we do not agree that the controlling law favors more, not less, specificity in issues 

instructions. Here, again, the tendered IPI No. 120.01 instruction told the jury that plaintiff’s 

allegation was that Dr. Peckler “[n]egligently performed hernia surgery resulting in injury to 
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plaintiff’s aorta.” Aside from being entirely accurate, the instruction succinctly summarized 

Goldberg’s theory without undue emphasis or repetition. 

¶ 28 We are not persuaded by Goldberg’s cited case law. Our instruction is nothing like the 

“woefully incomplete and inaccurate roadmap” in McQueen v. Green, 2020 IL App (1st) 

190202, ¶ 65, rev’d, 2022 IL 126666, a decision on which Goldberg relies. In that case, which 

notably did not concern an IPI No. 120.01 issues instruction, the jury instructions completely 

omitted an instruction on the burden of proof, completely omitted an instruction on willful and 

wanton conduct, and contained an instruction on vicarious liability that, in the appellate court’s 

view, improperly truncated the last sentence of the relevant IPI instruction, IPI No. 50.01. Id. 

¶ 29 (We also note that Goldberg plays a bit loose when he cites the McQueen appellate 

decision as being reversed “on other grounds.” In reversing the appellate court judgment, our 

supreme court disagreed with its holding regarding IPI No. 50.01 and held that the complaint of 

missing jury instructions had been forfeited, leaving very little left of the appellate court 

reasoning on instructional error. See McQueen v. Green, 2022 IL 126666, ¶¶ 49, 55.) 

¶ 30 Nor, for more than one reason, are we persuaded by Howat, 305 Ill. App. 3d 183, the 

principal case on which Goldberg relies. First, there were multiple problems in the issues 

instruction on contributory negligence, most notably that, by including the allegation that the 

plaintiff “entered an area of the premises to which she was not invited,” the instruction misled 

the jury by falsely suggesting that the plaintiff was not an invitee onto the defendant’s property 

and thus was not entitled to the requisite duty of care. Id. at 187. The allegation “unnecessarily 

complicated an otherwise simple issue of contributory negligence because it confused the 

concepts of trespass and invitee.” Id. at 188. Yet another problem was the instruction as a whole 

“allowed the jury to return a verdict for defendant without the requisite finding that some 
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negligent act or omission by plaintiff caused or contributed to her injuries.” Id. at 187. 

¶ 31 And the most relevant portion of the Howat decision, for our purposes, gives us pause. 

The court criticized two general allegations of contributory negligence—that the plaintiff “failed 

to keep a proper lookout” and that she “failed to observe the conditions then and there present.” 

Id. at 186. The court deemed these allegations “vague and conclusory.” Id. at 187. 

¶ 32 Yet, as defendants here note, the pattern jury instruction for IPI No. 20.01, itself, after 

directing the parties to “set forth in simple form without undue emphasis or repetition” the 

allegations of negligence, gives one and only one example of a proper allegation for illustrative 

purposes: “failing to keep a proper lookout.” IPI No. 20.01. We are hard-pressed to reconcile 

Howat’s rejection of this allegation with the fact that the pattern instructions singled it out, for all 

to see, as the one example of a proper allegation in an issues instruction. And given the 

decisional law we have cited above, we simply cannot agree that such allegations as “failing to 

keep a proper lookout” would be rejected as vague or conclusory or improper in any other way. 

Nor have other courts reviewing that same allegation. See O’Brien v. Hertl, 238 Ill. App. 3d 217, 

222 (1992); Guy v. Steurer, 239 Ill. App. 3d 304, 313 (1992). 

¶ 33 Goldberg additionally argues that the issues instruction was vague, in that it did not 

define “negligent,” and circular, in that it repeated a form of that word in both the introduction 

and in the body of the specific allegation. As for the definition, the jury was given an instruction 

that defined “professional negligence,” IPI 105.01. Reviewing the instructions as a whole, as we 

must (Schultz, 201 Ill. 2d at 273-74), the jury was given the appropriate definition. 

¶ 34 As for circularity, we would agree that it is a bit redundant to state that “the defendants 

were negligent in one or more of the following respects: Negligently performed hernia surgery 

resulting in injury to plaintiff’s aorta.” The adverbial form was unnecessary. But this is a civil 
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lawsuit, not English class. We cannot seriously fear that the jury was confused by this language. 

¶ 35 Though we need not say more, we would add that, even if we found error here in the 

giving of the instruction, that error would not have risen to the level of “serious prejudice” to 

warrant a new trial. Heastie, 226 Ill. 2d at 543. As the trial court noted, Goldberg was free to fill 

in the details of Dr. Peckler’s alleged negligence during closing arguments and, in fact, did so. 

Each side thoroughly discussed the finer-grained details of the actions of Dr. Peckler during the 

surgery. And while few medical negligence cases are simple, this one was rather straightforward 

in terms of the allegations of negligence. We reject any notion that the jury was left wading 

aimlessly in the dark, unaware of what Goldberg was claiming as his theory of the case. For this 

reason as well, we find no basis for a new trial. 

¶ 36 CONCLUSION

¶ 37 The judgment of the circuit court is affirmed. 

¶ 38 Affirmed.