No. 3--07--0326

______________________________________________________________________________ Filed May 16, 2008 IN TH E AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2008 TON I THO RNT ON, INDIV IDUA LLY ) Appeal from the Circuit Court AND AS SPECIAL A

DMINI STRATOR ) of the 12t h Judicial Cir

cuit, OF THE ESTATE OF JASON ANTHONY ) Will County, Illi nois EBNER, DECEASED, ) ) Plaintiff-Appellee, ) ) v. ) ) FRANCISCO J. GARCINI , M.D., ) No. 01-L-020 ) Defend ant-App ellant, ) ) and ) ) JANET WRY, R.N ., In

dividually and as ) agent for SIL

VER CROSS HOSPITAL, et. al., ) Honorab le ) Richard J. Si egel, Defend ants. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE CARTER del ivered t

he opinion

of the co urt:

______________________________________________________________________________ Plaintiff, Toni Thor

nton, indiv

idually and as the special administrator of her decease d son’s estate, brought suit against defendant, Dr. F rancisco J. Garcini, for wrongful death, su rvival, and negligent inflictio n of emotional distre ss in relation to the death of her son during child birth and the circumst a nces of delive

ry . After a

trial, a j ury

found de fendant

liable for negli gent inf

lictio n o f emotional dist ress an d award ed pla inti ff $70 0,000 in dam age s. Defendant filed a motion for judgment notwithstanding the verdict and request for setoff, wh ich was d enie d by

the trial court. Defendant

appeals , argu

ing that his motion f

or ju dgme nt notwithstanding the verdict should have2

been grante d becau se: (1) p laintiff failed to prove negligent infliction of emotional distress by expert testimony as required under I llinois law, and (2) the verdict against him is in violation of the singlerecovery rule. In the alternative, def endant argues that he is entitled to a setoff of $175,000 based on the pay

ment of a prior jud gment in this case . We affir

m the rulin

gs of the trial cou rt.

FACTS OnAugust 28, 2000, plaintiff’s infant son d ied during child birth. The baby was born prematu rely with anapproximate gestational age of just under 24 wee ks and a birth wei ght of a

lmost two pounds. With

in a few m

inutes af ter plain tiff’s wa ter brok e the baby pa

rti ally de livered in a bre ech position bu

t became entrapp ed at the

head. De fendant , plaintif f’s obste trician, was n o t present at the hos

pital at th e time of the pa

rtial del ivery

and no oth er doctor was pre sent to as sist in the delivery. As a

result, plaintiff sat with the baby in a pa rtially-delive

red position for approxima

tely one hour and ten minutes un til defen dant arrived at her bedside and delivere d the baby. The ba

by was dec eased at that time. Plaintiff subseque ntly brought suit against defendant, the nurses involved, a nd the hospital for wrongful death, survival, and intentional infliction of emotional distress. A jury found defe ndant and the nurse s not l iable on a ll claims, r

uled ag ainst the h

ospital on plaintiff ’s emotional-distr

ess claim, and awarded plaintiff $175,000. Plaintiff filed a p osttrial mo tion chal lenging the jury verdict as to def endant, the hospital, and the nurses. In the motion, plaintiff allege d, among

other thin

gs, that the jury had bee n imprope

rly exposedto pre

j udicial extrinsic information during their deliberations and that the trial court had erred ingiving the jury

certain instructions. While the motion was pending, plaintiff entered into a3

agreement

with the nu

rses and the hospit

al to settl e all of plaintiff’s and the estate’s claims ag ainst those parties for $175,000. The written agree ment specifically pr

ovided that the settleme

nt would noteffect plaintiff’s claims against the instant defenda nt, the onl y pa rty who did not settle with the plaintiff. The posttrial motion proceeded as to plaintiff

’s claims agains t defend

ant. Afte r some discovery and a h earing, the trial

court de nied plai ntiff’s p osttrial mo tion. Thiscourt sub sequentl y reversed that ruling and remanded the case f or a new trial on plaintiff’s claims against the instant defendant. Thornton v. Garcini , 364 Ill. App. 3d 612, 621, 846 N.E.2d 989, 997 (2006). The evidence presented at the second jury tria

l established

the general circumstances of the delivery as de scribed

above. H owever , conflicting witness testimony was presente d regarding the informationthat was conveye d to defendant during the delivery and the timing of that information. Inaddition, the expert-opinion witnesses disagreed as to whether defenda nt h ad breached the standard of care by n ot coming

to the hosp ital ear

lier, and at leas tby impl ication, as to whether defendant’s presence in the delivery room would have made any

difference in the procedure tha t was followed. During the course of the second trial, plaintiff a mended her comp laint to conform tothe proofs to include

a claim of

neglig ent infli ction o f emotiona l distress and elec ted not to s

ubmit a claim of intentional inflictio n of emotional distre ss to the jury. Although plaintiff, the baby’s fa ther, and plaintiff’s mother testified regarding the effect that the baby ’s death and the circumstances of the deliver

y ha d on plaint

iff, no e xpert w itnes s was presented regarding plaintiff’s claim for emotional distress. At the conclusion of the second trial, the jury found in favor of defendant on the wrongful death and survival claims, ruled in plaintiff’s favor on the negligent infliction of emotional distress claim, and awarded plaintiff $700,000 in damage s. Defendant

filed a posttrial motion for judgment notwithstanding the verdict alleging, among4

other things, that plaintiff had failed to prove neglig ent infliction of emotional dist ress by expert testimony as required under I llinois law and that the verdict was in violation of the single-recovery rule. In the alternative, def endant requested that the amoun t of the damage award be se toff by $175,000 to reflect the hospital’s pay ment in full of the prior verdict amount. The trial court denied defendant’s motion for

judgmen t notwithsta

nding the verdict and the r equest for setoff. This appeal followed.

ANA LYSIS As his first p oint of contention on appea l, defen dant arg ues that h is motion for judgment notwithstanding the verdict should have been granted be cau se pl aintiff failed to prove negligent infliction of emotion

al distre ss by

expert t es ti mo ny as required under I llinois law. Defendant contends that experttestimony is necessary to establish that the emotional distress was severe, that it was a reasonably

foreseeable co nseq uence of the alleged neg ligence, and to distinguish the emotional distress caused by the circumstances of the delivery from that caused by

the dea th of plaintiff’s son, the latter of which plaintiff cannot be compensated for under her e motional distress claim. Pla

intiff ar gues tha t expert te stimony

is not req uired und er I llinois law

to establi sh a clai

m of neg ligent infliction o f emotiona l distress

. A trial court’s ruling on a motion for judgment notwithstanding the verdict is subject to a de

novo standard of review. McClure v. Owens Corning Fibe rgl as Corp. , 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). A motion for judgme nt notwiths tanding

the verd ict should only

be granted inthose limited cases where all of the evidence and the inferences ther efrom, viewed in the light most favorable to the nonmoving party, so overwhelmingly favor s the movant that no contrary5

verdict based on that evidence could ever stand. Maple v. Gustafson , 151 Ill. 2d 445, 453, 603 N.E.2d 508, 512 (1992). When ruling upon such a motion, the court does not weigh the evidence

or make det erminati ons of cr

edibility and must not substitu

te its judg ment for t hat of the jury merely because there are other inferences or conclusions that the jury could have drawn or because ther e are other results that the court

believe s is more reasonable. Maple , 151 Ill. 2d at 452-53, 603 N.E.2d at 512. “The cour

t has no right to enter a judgment [notwithstanding the verdict] if there is any evidence, togethe

r wit h r easonable inferences to be draw n therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnes ses or the determination regarding conflicting evidence is decisive to the outcome.” Maple , 151 Ill. 2d at 454, 603 N.E.2d at 512. Inthe pres ent case , the arg uments of the parties on this issue center around an interpretation of our supreme court’s ruling in Corgan v. Muehling , 143 Ill. 2d 296, 574 N.E.2d 602 (1991 ), a cas e where our supre

me court applied a general-ne gligence approac h to a claim of negligent

infliction of emotional distress raised by a direct victim of the defendant’s negligence. See Corgan , 143 Ill. 2d at 306, 574 N.E.2d at 606. Defendant points to the supreme court’s statements in that case--that the “lack of prec ision is not a

justifiab le reas on to prec lude rec overy, as exper t witness es such a s psychiatris t, psychologists and soc ial workers are ful ly c apable o f providi ng the ju ry with an an

aly sis of a plaintiff's emotional injuries” and that “the women and men of the mental health car e field have made s ignificant improve ments in the diagnosis, description and treatment of emotional distress”--as establishing a requir

ement tha t such cla ims must be proven by expert testimony . See Corgan , 143 Ill. 2d at 311-12, 5 74 N.E.2d

at 609. De fendant

notes tha t the Second District Appella te Court has interpreted

the language from Corgan as establishing such a requirement. See Hiscott v. Peters , 324 Ill. App. 3d 114, 126-27, 754 N.E.2d 839, 850-51 (2001).6

Plaintiff cites the fact that the supreme court adopted a g ene r al-neg ligenc e approa ch in Corgan and points

to the supr

eme cour t’s state ment in tha

t decision that it had “not

lost its fa ith in the ability

of juror s to fairl

y de termine w

hat is , and is not, emotional distress” as support for her argument that Illinois does not require expert testimony to establish negligent infliction of emotional distress. See Corgan , 143 Ill. 2d at 312, 574 N.E.2d at 609. Plaintiff notes that the Fifth District Appellat e Court has i

nterpre ted the la nguag e from Corgan as e stablishing a rule that expert testimony is not requi

red to pr ove emoti onal distr

ess claims. See Clark v. Owens-Brockway Glass Container, I nc. , 297 Ill. Ap p. 3d 694, 701, 697 N.E.2d 743, 748 (1998) (addressing an issue of dama ges for emotional distress raised in the context of a retaliatory discharge case). We believe that the sounder approach to this issue is that adopted by the Fifth Dis tr ict Appellat e Court. Ac cordingly, we hold th at in ge neral, I llinois law does not require expert testimony to prove cl aims of

negligent infliction of emotional distress. See Clark , 297 Ill. App. 3d at 701, 697 N.E.2d at 748; Bristow v. Drake Street I nc. , 41 F.3d 345, 350 (7th Cir. 1994) (plaintiff not required to consult a

psychiatris t or to pre sent medic al evide nce to es tablish

a claim of tortious inflictionof emotional di stress). Thus, we c onclude t hat unlike

a medica

l malprac tice cla im, a clai m f o r emotional distress p

ursuant t o a general-n eglig ence ap proach, does not r

equire e xpert testi mony in order for the jurors to make their determination. Such a conclusion is consistent with our supre me

co urt’s application of a ge neral-negligence approach to a direct victim’s claims of neglig ent infliction of emotional distress. See Corg an , 143 Il l. 2d at 306, 574 N.E.2d at 606. We therefore reject defendant’s argument on this issue. As his next poin

t of conte ntio n on appeal, defendant argue s that his motion for judgment notwithstanding the verdict should have been granted because the verdict aga

inst him in the second trial violates t

he singl e-rec overy

rule. Spe cifical ly, defenda nt contends that

plaintiff suffer ed a single7

emotiona l-distre ss injury, that the jury in the first trial determined the amount of plaintiff’s damages for that injury, that plaintiff did not appeal that determination, that plaintiff accepted full pay ment insatisfaction of the judgment amount , and that p laintiff cannot now seek additional damages (a second recovery ) from de fe nd an t f

or th at sa me in

ju ry. Plaintiff

argue s that def

endant ha s waived

this assertion by failing to r

aise it at any time prior to filing of the posttrial motion, that defen dan t’s assertion is inconsistent with the Joint Tortfea sor Contri bution Ac t (740 I

LCS 100/0.01 e

t seq. (We st 2006)), and that the second verdict does not violate the single-re covery r ule because the jury

in the

s eco nd trial cou ld have f ound that t

he neg ligent infliction o f emotiona l distress claim ag ainst defendant was a separate injury

. As noted above, a trial court’s ruling on a motion for judgment notwithstanding the ver dict is subject to a de novo standard of review. McClure , 188 Ill. 2d at 1 32, 720 N.E.2d at 257. The motion should only be gr

anted where the evidence and inferences theref rom viewe d in the lig

ht most favora ble to th e n on mo vi ng pa rt y s o overwhel mingly favor s the movant that no contrary verdict based on that evidence could ever stand. Maple , 151 Ill. 2d at 453, 603 N.E.2d at 512. The sing le -recovery

rule provides that when a plaintiff has been awa rded damages in a lawsuit against one tortfeasor and then seeks to hold a second tortfeasor liable for the same injury ina subsequent lawsuit, the plaintiff is estopped by the former adjudication from reco vering an amount of damages greater than that awarde d in the first lawsuit. Bodam v. City of Chi cago , 241 Ill. App. 3d 93 7, 941, 609N.E.2d 80 2, 805 (19 93). I n addition , if th e plaintif f has been ful ly

co mp en sa te d f

or th at in ju ry, he has no further negligence cause of action against another pa rty for that same injury bec ause his claim at that point lacks the essential element of damages. Saichek v. Lupa , 204 Ill. 2d 127, 137, 787 N.E.2d 827, 833 (2003); Bodam , 241 Ill. App. at 941, 609 N.E.2d at 805.8

Before we apply the single-recover y rule in t

he present case, we must consider plaintiff’s argument that defendant has waived this assertion by failing to raise i

t in the tri al court

at any time prior to the post-trial mo tion filed after the second

trial. In light of the extensive procedural history inthis case, we agree

with plaintiff’s waiver argument. A party cannot sit onits hands, let perceived

errors into the record, and then compl a in of those errors for the first time in a post-trial motion. Moller v. Lipov , 368 Ill. App. 3d 333, 342, 856 N.E.2d 664, 673 (2006). D efendant did not r aise the single-recovery

rule during the post-trial phase of the first trial (after the settlement occurred), during the first appeal, during the pre-trial phase of the second trial, or

at any time during

the second trial. In addition, defendant’s own jury instruction was the verdict form upon which the jury returne d its verdict for plaintiff in the second trial. Had d efenda nt asser ted this iss

ue at the second tr

ial, plaintiff may have opte d to submit a

cl ai m o f i nt en ti on al in fl ic ti on of em ot io na l d is tr es s t o t he ju ry. Under these circumstances, we find that defenda nthas waived for appeal his argume ntregarding the single-recovery

rule. See Moller , 368 Ill. App. 3d at 342, 856 N.E.2d at 673. Having reached that conclusi on, we ne ed not add ress pla intiff’s other ar guments on this poin

t. As his third point of

contention on appeal, defendant argues that trial court erred in de nying his post-trial request for setoff. Defendant asse rts that plaintiff received a judgmen t for a single injury of emotional distress, which was paid by the hospital in full, a nd must be setoff against the $700,000 in damages awarded by the jury fo r that s ame injury. Plaintiff arg ues that the prior judgment was not paid, but rather that plaintiff settled a ll claims a

gainst the hospital and the nurses for $175,000, and that defendant is not entitled to setoff because he has f ailed to show what

portion of that se ttlement is

allocab le to plain

tiff’s c laim of em

otional dis tress. It is well settl ed that a

n injured plaintiff may receiv e only

one full compensation for his or her injuries. Pasquale

v. Speed Pr

oducts Engineering , 166 Ill. 2d 337, 368, 654 N.E.2d 1365, 13819

(1995); Klier v. Siegel , 200 Ill. App. 3d 121, 127, 558 N.E.2d 583, 588 (1990). Double recovery for the same injury is not allowed. Klier , 200 Ill. App. 3d at 127, 558 N. E.2d at 588. Where a plaintiff has suffered

a single injury caused by th e negli gence of multiple

defenda nts, any amounts received for that same injury

from any of the

defendants, as the result of a judgment or a settleme nt, must be deducted or setoff fro m the total am ount of damages sustained. See Barkei v. Delnor Hospital , 207 I ll . App. 3d 255, 265 , 565 N.E. 2d 708, 713 -14 (1990 ); 740 I LCS 100 /2(c) (We st 2006). This setoff prevents the plaintiff from receiving a double recovery

. Pasquale , 166 Ill. 2d at 3 68, 654 N.E.2d at 1381-82. The determination as to which of several c laims a settlement award should be attributed to for the purposes of setoff is a matter within the sound discretion of the tria l court and should not be reversed on appeal absent an abus e of discretion. Pasquale , 166 Ill. 2d at 369, 654 N.E.2d at 1382. The party see king setoff has the burden of proving what portion of a prior settlement

was allocated

or attributable to the claim for which he or she is liable. Pasquale , 166 I ll. 2d at 369, 654 N.E.2d at 1382. A court considering a reque st for setoff will not speculate about such matters and will deny the re quest if the party se eking setoff has failed in that burden. See Dolan v. Gawlicki , 256 Ill. App. 3d 153, 156-57, 628 N.E.2d 1188, 1190-92 (1994). Inthe present case, weagree with plaintiff’s assessment that the $175,000 pay ment was part of a settl ement ag

reemen t, rathe r than the mere pa yme nt of the prior judg

ment. At the time of the settlement

agree ment, pla intiff ha d filed he r posttria l motion cha

llengin g the ve rdict in th e first tr

ial. At that point, all of pla

intiff’s claims agains teach of

the defe ndants, bo th individually

and on be half of the esta te, were still activ e for the

purposes of furth er revi e w. Plaintiff andthe nurses and the hospital entere d into a settlement to avoid the uncertainty of an appeal and to establish a final resolution of those claims. The settlement agreement spec ifically provided that plai ntiff was not settling her

claims against the instant defendant and could pursue those claims further. Def endant10

ha s made no showing a s to what portion of the $175,00 0 settleme nt is alloc able to pl a intiff’ s emotional distress c laim. This court will not speculate as to a proper allocation. See Dolan , 256 I ll. App. 3d at 155, 628 N.E.2d at 1189-91. Defendant’s requ est for set off, the refore , was pro

perly denied. For the foregoing r easons, we affirm the judgment of the circ uit court of Will County. Affirmed. HOLDRI DGE J. and MCDADE, P. J. concurring.