3--04B0725 

____________________________________________________________________ 

filed April 6, 2006. 

IN THE APPELLATE COURT OF ILLINOIS 

THIRD DISTRICT 

A.D., 2005 

TONI THORNTON, Individually ) 

and as Special Administrator of the ) 

Estate of Jason Anthony Ebner, ) 

Deceased ) Appeal from the Circuit Court 

Plaintiff-Appellant, ) For the 12th Judicial Circuit 

) Will County, Illinois 

) 

v. ) 

) No. 01 L 20 

) 

FRANCISCO J. GARCINI, ) Honorable Robert C. Lorz 

Defendant-Appellee. ) Judge, Presiding 

_________________________________________________________________________

_____ 

JUSTICE O=BRIEN delivered the opinion of the court: 

______________________________________________________________________

________ 

Following a jury trial, defendant Francisco Garcini, M.D., was found not liable for 

wrongful death, and intentional infliction of emotional distress in an action brought by 

plaintiff Toni Thornton in connection with the death at birth of her baby, Jason Ebner. 

Thornton appeals from the trial court=s order entering judgment in favor of Garcini. We 

reverse the trial court and remand the cause for a new trial. 

FACTS 

The record indicates that on August 28, 2000, at approximately 6 to 6:30 a.m, 

plaintiff Toni Thornton was admitted to Silver Cross Hospital in Joliet, Illinois. Although 

there is some question about the exact time she was admitted, the records indicate that at 
2 

6:30 a.m. certain medications were given to Thornton based on instructions given by 

defendant Garcini via phone to the treating nurses. Garcini had seen Thornton on one 

other occasion, August 21, 2000. During this appointment, Garcini took a medical history 

of Thornton that included the fact that she had previously given birth prematurely. An 

approximate date of April 1, 2000, was noted for her last menstrual period. When Thornton 

was admitted to the hospital on August 28, 2000, the notation on the admission form 

indicated a gestational age for the baby of 23 5/7 weeks, based on a last menstrual period 

of March 18, 2000. 

Dr. Garcini was contacted at home regarding Thornton=s admission to the hospital. 

Garcini ordered the administration of certain drugs to Thornton and ordered an ultrasound 

administered. Garcini testified he took a shower and waited at home for information 

regarding the test results. Garcini testified that from the information given to him by the 

nurses he did not believe Thornton was going to imminently deliver. He also indicated that 

at 23 5/7 weeks, Thornton would be considered a high risk delivery. Garcini was paged a 

second time at home. He was in the shower and did not immediately answer the page. 

By the time Garcini phoned the hospital, he was informed that Thornton had partially 

delivered Jason. Jason was in a breech position and he became entrapped at the head. 

Garcini testified he instructed the nurses not to force the full delivery of Jason. No other 

obstetricians were available at the hospital. Garcini testified he was aware that if Jason 

was not fully delivered in a short period of time he would die. The partial delivery occurred 

at approximately 7:10 a.m. Garcini arrived at the hospital at 8:20 a.m., 35 minutes after he 

left home, and approximately 1 hour and 50 minutes after he was first contacted. Once at 

the hospital, Garcini removed Jason, who was then deceased, from Thornton. Jason=s 
3 

weight was 907 grams or approximately 2 pounds. 

Dr. Charles Bird, an obstetrician-gynecologist, testified as Thornton=s expert. Bird 

testified that in his opinion Garcini had violated the standard of care in not leaving 

immediately for the hospital once he was informed Thornton was in labor. Bird based his 

opinion on Thornton=s previous history, the term of the pregnancy, her condition as 

described to Garcini by the nurses and the fact that Garcini could not anticipate that 

another doctor might be available to aid Thornton. 

Bird stated that based on Jason=s weight, he estimated his gestational age at no 

lower than 26 weeks and as high as 28 weeks. Bird did not believe Jason was a 23-weekold baby, as, in his opinion, at 23 weeks, babies weigh a little over one pound, not two 

pounds. Dr. Bird admitted that a comparison of gestational age and gestational weight to 

arrive at an adjusted gestational age was a process used by neonatologists, not 

obstetricians. Dr. Bird=s opinion included the following conclusions: Jason would have had 

a chance to survive if Garcini, the hospital and the nurses had not breached the required 

standard of care; he could have been delivered successfully; and had he been delivered 

successfully, Jason would have had an 85% chance of survival. Dr. Bird agreed that 74% 

of infants at 24 weeks do not survive to a point where they can be successfully discharged 

from the hospital. Dr. Bird also acknowledged the doctor who performed Jason=s autopsy 

noted the baby=s gestational age as approximately 23 weeks. 

 Dr. DuBoe, a obstetrician/gynecologist, testified as an expert for Garcini. DuBoe 

testified that, in his opinion, Garcini complied with the standard of care in his treatment of 

Thornton. In Duboe=s opinion, when Garcini was first notified of Thornton=s admission to 

the hospital, there was no indication she was going into rapid delivery. 
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Dr. Hulac, a neonatologist, testified in Garcini=s defense. Hulac opined that a weight 

of 907 grams could be consistent with a 23- or 24-week-old fetus as well as a 26- or 27-

week-old fetus. Hulac pointed to the fact that Jason=s eyelids were still fused as indicative 

that at delivery he was younger than 26 weeks. Basing his opinion on the survivability of a 

23- or 24-week-old fetus, Hulac opined it was unlikely Jason would have survived to 28 

days. Hulac also testified that had Jason survived, he would have had profound struggles, 

including the possibility of loss of intestine, liver damage, lung damage, eye damage, ear 

damage, and brain damage. 

At the close of the trial, the trial court, as part of the jury instructions and over 

Thornton=s objection, gave the following instruction: AIn determining pecuniary loss, you 

may consider what the evidence shows concerning the following: His age, his health; his 

physical and mental characteristics; the relationship between Jason Ebner, decedent, and 

his parents and brother.@ The jury found in favor of Garcini and the trial court entered an 

order against Thornton. 

Thornton filed a posttrial motion, stating, in part, that she had received information 

indicating that jurors had been exposed to prejudicial extrinsic information during their 

deliberations. The trial court granted Thornton=s request to seek limited discovery on 

whether the jurors= verdict may have been improperly influenced by the articles in question. 

 In granting leave to Thornton to conduct the discovery, the trial court stated: 

A[I]t would be possible for a juror to come to the conclusion *** that 

from the proximate cause end that it didn=t matter what Dr. Garcini did ***they 

could have found that it didn=t make any difference whatsoever because even 

if Dr. Garcini had been standing there, there may not have been anything that 
5 

he could have done *** that if this baby had been delivered that the baby 

simply would not have survived so that it didn=t matter. And these articles 

clearly discuss those issues; and more importantly discuss those issues in 

the context of other medical experts rendering opinions with respect to those 

issues.@ 

Each of the jurors was sent a questionnaire. They were asked if they had read any 

of the following three articles: AA Fragile Fighter,@ AIn Naperville, a Very Small Miracle,@ or, 

A>Preemie= Care Advances.@ One juror responded he had read A>Preemie= Care Advances.@

 He indicated he had not discussed the article with any of the other jurors. A second juror 

admitted to having read AA Fragile Fighter,@ and also denied having discussed the article 

with any of the other jurors. The remaining jurors all responded that they had not read any 

of the articles. The questions on the juror questionnaire were framed so that only those 

jurors who admitted to reading an article were required to respond to the question of 

whether they had discussed the articles with any other jurors. 

The article, A>Preemie Care Advances,@ included the statement that Silver Cross 

Hospital (the hospital to which Thornton was admitted) was equipped to take care of 

premature babies born at 28 weeks who weighed more than three pounds, three ounces. 

Two doctors, practitioners of newborn and neonatal care, were quoted in the article. The 

doctors made statements regarding the survivability of premature babies and the health 

and medical concerns for premature infants. One doctor stated that a 23-week baby 

weighing one pound had only a 5%-10% chance of survival, whereas a 27-week baby 

weighing two pounds had a 90% survival rate. The other doctor stated that some of the 

concerns with respect to premature babies included possible blindness, and hemorrhage 
6 

of the brain, for which there is no treatment. The other article, AA Fragile Fighter,@

described the concern of a mother who ultimately gave birth to a 27-week-old baby. The 

article referred to the mother=s fear that if she failed to carry the baby beyond 24 weeks, 

Athe baby would almost certainly die.@ 

After receipt of the jurors= questionnaires, the trial court again stated the articles read 

by the jurors concerned an issue critical to the case. The trial court also stated the articles 

were supportive of Thornton=s position in that the general tenor of the articles was that 

medical advances give premature babies a better chance of survival than in the past. For 

this reason, the trial court determined the articles did not present material to which 

Thornton had not had a chance to respond. The trial court concluded there was Avery little 

probability that the articles had an adverse impact on [the] case,@ and declared the trial fair. 

 

Thornton also asserted in her posttrial motion that the trial court erred in giving an 

instruction that allowed the jury to consider elements for determining pecuniary loss that 

were not relevant to her claims for loss of society and were unduly prejudicial. The trial 

court denied Thornton=s posttrial motion and she follows with this appeal. 

ANALYSIS 

 On appeal, Thornton asserts the trial court erred in failing to grant a new trial where 

newspaper articles that had been read by some of the jurors may have improperly 

influenced the verdict. ANot every instance in which extraneous information reaches [a] jury 

constitutes reversible error.@ People v. Collins, 351 Ill. App. 3d 175, 179, 813 N.E.2d 285, 

289 (2004). However, when such information reaches the jury, it is presumptively 

prejudicial. Collins, 351 Ill. App. 3d at 179, 813 N.E.2d at 289. The party challenging the 
7 

verdict needs to show only that the information relates directly to something at issue in the 

case which the losing party did not have the opportunity to refute and that may have 

influenced the verdict. Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353, 369, 575 N.E.2d 

243, 254 (1991). The losing party need not prove actual prejudice. Haight, 215 Ill. App. 3d 

at 369, 575 N.E.2d at 254. The burden shifts to the nonmoving party to show a lack of 

prejudice. Collins, 351 Ill. App. 3d at 181, 813 N.E.2d at 290. The standard to be applied 

is whether the conduct at issue involved such a probability of resulting prejudice that the 

verdict must be deemed inherently lacking in due process. See Collins, 351 Ill. App. 3d at 

180, 813 N.E.2d at 290. The vital question is whether the jurors exposed to the information, 

or any of them, were influenced and prejudiced to such an extent that they would not or 

could not be fair and impartial jurors. See Van Hattem v. K mart Corp., 308 Ill. App. 3d 121, 

129, 719 N.E.2d 212, 220 (1999). AA verdict may stand only if it is >obvious= that no 

prejudice accrued to the defendant.@ Collins, 351 Ill. App. 3d at 179-80, 813 N.E.2d at 289-

90, quoting People v. Hobley, 182 Ill. 2d 404, 462, 696 N.E.2d 313, 341 (1998). 

With respect to the effect of a supposedly unbiased news report, the impact on the 

jury cannot be underestimated when the report has articulated, bolstered and supported the 

nonmovant=s theory of the case. See Van Hattem, 308 Ill. App. 3d at 131, 719 N.E.2d at 

221. A trial court should not consider conclusive a juror=s statement that reading a 

prejudicial newspaper article has not influenced him. Van Hattem, 308 Ill. App. 3d at 130, 

719 N.E.2d at 220. The determination of whether prejudice has occurred rests in the sound 

judicial discretion of the court after it has considered all the facts and circumstances. Van 

Hattem, 308 Ill. App. 3d at 130, 719 N.E.2d at 220 (finding trial court abused its discretion 

in denying defendant=s motion for a mistrial where the court questioned only those jurors 
8 

who had seen the prejudicial newscast, but not those who had heard of the program but not 

seen it). 

In the instant case, a crucial issue in the proceedings was whether Garcini breached 

a standard of care in delaying to proceed directly to Silver Cross Hospital once he learned 

his patient was in premature labor there. Also the subject of extensive testimony was the 

gestational age of the baby, Jason, and his relative ability to survive outside the womb. The 

gestational age that was discussed varied from 23 to 28 weeks. Garcini argues that the 

survivability of baby Jason was not relevant to the issue of liability, an issue decided in 

Garcini=s favor. Further, Garcini asserts, the parties= experts agreed that if baby Jason=s 

gestational age was between 23 to 24 weeks, his chances for survival were gravely 

threatened. As the trial court pointed out, however, the gestational age and survivability of 

Jason did relate to the crucial question of whether Dr. Garcini proximately caused the death 

of Jason. Although the articles, in general, dealt with medical advancements in the care of 

premature babies, they also bolstered the idea that at the lower end of the gestational age 

spectrum discussed, premature babies were unlikely to survive. These articles had the 

potential to influence anyone who read or discussed them to conclude that, in the words of 

the trial court, A if this baby had been delivered that the baby simply would not have 

survived so that it didn=t matter.@ 

The trial court correctly surmised that the articles related to a crucial issue in the 

case: whether Dr. Garcini proximately caused the death of baby Jason. Following an 

investigation, by way of a Afill-in-the-blank@ questionnaire, the trial court concluded the 

jurors were not prejudiced by exposure to the articles. The jurors were not personally 

questioned by the court and only those jurors who admitted reading an article were required 
9 

to respond to a query of whether the articles had been discussed during deliberations. The 

results of this process did not satisfy Garcini=s burden to demonstrate that no juror was 

prejudiced by these extraneous materials. If any juror exposed to the articles in any way 

was in doubt as to whether the cause of baby Jason=s death was the inaction of Dr. Garcini 

or the baby=s inability to survive due to his gestational age, the extraneous articles could 

have tipped the scales, resulting in an improperly influenced verdict. 

We find that the articles related to a crucial issue of the case. Thornton did not have 

the opportunity to question the information or the sources relied upon in the articles. The 

court did not conduct a thorough inquiry into the possibility that any one of the jurors may 

have been improperly influenced by the articles. For these reasons, it is not Aobvious@ that 

no prejudice accrued to Thornton and it was an abuse of discretion for the court to 

conclude otherwise. We reverse the trial court and remand the cause for a new trial. 

We also address two further issues Thornton has raised on appeal that may arise on 

retrial. 

The first issue is whether the trial court erred in allowing a jury instruction which included in 

its definition of pecuniary loss, the age, health, physical and mental characteristics of the 

decedent and the relationship of the decedent with parents and siblings. Given that the 

instruction that the trial court gave is a standard Illinois pattern instruction, the only issue is 

whether the instruction is clear enough to avoid confusing the jury and whether it fairly and 

accurately states the applicable law. Hendrix v. Stepanek, 331 Ill. App. 3d 206, 215, 771 

N.E.2d 559, 567 (2002). Whether a jury instruction is an accurate statement of law is a 

question to be reviewed de novo. Luye v. Schopper, 348 Ill. App. 3d 767, 773, 809 N.E.2d 

156, 161 (2004). 
10 

Under Illinois law, when a child dies as a result of the tortious acts of another, the 

parents are presumed to have suffered a pecuniary injury in the form of loss of society. 

Simmons v. University of Chicago Hospital & Clinics, 247 Ill. App. 3d 177, 182, 617 N.E.2d 

278, 283 (1993). This loss is compensable in a wrongful death action even in the case of 

stillbirths. Seef v. Sutkus, 145 Ill. 2d 336, 338-39, 583 N.E.2d 510, 511-12 (1991) (finding 

that under the Wrongful Death Act, regardless of the state of gestation, an unborn fetus is 

recognized as a person and parents may recover damages for pecuniary loss resulting 

from the death of the unborn fetus). Within the concept of loss of society is the notion of 

the future companionship, guidance, love, advice, affection and comfort that would have 

been exchanged between the parents and the child but for the defendant=s negligence. 

Simmons, 247 Ill. App. 3d at 182-83, 617 N.E.2d at 283. The parents= right to recovery for 

loss of society does not depend upon whether there has been some exchange of society in 

the past, but whether but for defendant=s negligence, society would have been exchanged. 

Seef, 145 Ill. 2d at 342, 583 N.E.2d at 513 ( Miller, J., specially concurring). Although 

consideration of the length, intensity, and quality of the parent-child relationship may in 

some cases be useful in measuring the magnitude of the parents= loss, it does not 

determine whether a loss occurred. Seef, 145 Ill. 2d at 344, 583 N.E.2d at 514 (Miller, J., 

specially concurring). 

In the instant case, the instruction at issue that was given to the jury read, in part, as 

follows: AIn determining pecuniary loss, you may consider what the evidence shows 

concerning the following: His age, his health; his physical and mental characteristics; the 

relationship between Jason Ebner, decedent, and his parents and brother.@ The instruction 

appears to instruct the jury that the loss of Jason=s society was somehow dependent on 
11 

some relationship that had been established in the past. This is not the state of the law in 

Illinois and may have misled the jury into believing damages for loss of society were not 

appropriate because Jason did not live long enough to have had a relationship with his 

family. Any instruction given to the jury with respect to the parents= loss of Jason=s society 

should clearly indicate that the determination of a loss is not dependent upon the family 

having enjoyed a past relationship with Jason, but is a consideration of the future 

companionship the family may have enjoyed. 

The final issue we address is whether the trial court erred in allowing Garcini=s expert 

to testify about the likelihood that Jason would have been born with disabilities. A trial 

court=s decision to admit evidence will not be disturbed absent an abuse of discretion. Gill 

v. Foster, 157 Ill. 2d 304, 312-313, 626 N.E.2d 190, 194 (1993). Evidence that is relevant 

may be excluded if its probative value is outweighed by such factors as prejudice, 

confusion, or potential to mislead the jury. Gill, 157 Ill. 2d at 313, 626 N.E.2d at 194. 

If liability is found in a wrongful-death-of-a-child action, the presumption is that the 

parents have suffered a pecuniary injury in the form of a loss of the child=s society. Bullard 

v. Barnes, 102 Ill. 2d 505, 517-19, 468 N.E.2d 1228, 1234-35 (1984). The presumption is a 

rebuttable one. Defendants may, for example, present evidence that the parent and child 

were estranged, or that a set-off for child-rearing expenses is appropriate. Bullard, 102 Ill. 

2d at 517, 468 N.E.2d at 1234. The defendant may produce evidence that irrespective of 

the defendant=s negligence, the child was unhealthy, or unlikely to live beyond majority. 

Smith v. Mercy Hospital & Medical Center, 203 Ill. App. 3d 465, 477, 560 N.E.2d 1164, 

1172 (1990). In Flynn v. Vancil, the jury found the defendant liable but awarded no 

damages for pecuniary loss where the two-week old child was suffering from an incurable 
12 

congenital condition. Flynn v. Vancil, 41 Ill. 2d 236, 240-41, 242 N.E.2d 237, 240-41 (1968). 

 Ultimately, it is for the jury, as the trier of fact, to hear the contrary evidence, weigh the 

facts and decide whether to award damages. Smith, 203 Ill. App. 3d at 478, 560 N.E.2d at 

1172. 

Thornton asserts that it is inappropriate for Garcini to imply that the potential 

disabilities of baby Jason mitigate the loss of society suffered by his parents. The argument 

is based, in part, on the case of Dralle v. Ruder,124 Ill. 2d 61, 529 N.E.2d 209 (1988). In 

Dralle, the court concluded that damages for loss of society resulting from nonfatal injuries 

to a child were not recoverable. Dralle, 124 Ill. 2d at 71, 529 N.E.2d at 213-14. The Dralle

court noted, in part, that allowing recovery for loss of society in a nonfatal injury case would 

result in the A>unseemly spectacle=@ of parents disparaging the "=value=" of their children in 

open court so as to minimize any offset argued by the defendant. Dralle, 124 Ill. 2d at 71, 

529 N.E.2d at 213, quoting Cockrum v. Baumgartner, 95 Ill. 2d 193, 202 (1983). The Dralle

court considered such a situation to be in sharp contrast with the situation in a wrongful 

death action, where the opposite is argued, and loss is presumed. Dralle, 124 Ill. 2d at 71, 

529 N.E.2d at 213. As stated in Vitro v. Mihelcic, the Dralle decision was validly based on 

the rationale that unlike wrongful death actions which are predicated upon statutory law, the 

legislature has not spoken on the issue of loss of society as related to a child who suffers 

nonfatal injuries. Vitro v. Mihelcic, 209 Ill. 2d 76, 90, 806 N.E.2d 632, 639 (2004). 

In the instant case, Garcini presented opinion testimony that it was likely baby Jason 

would not have survived after birth or, if he had, he would have struggled with birth defects. 

 It was for the jury to weigh this evidence and determine whether the evidence rebutted to 

any degree the presumption of loss of society. Based on their knowledge and experience, 
13 

and the weight they gave the testimony, the jurors could have concluded there was no 

potential for serious birth defects, or that if baby Jason survived with defects, there would 

be no impact on the society, some degree of diminishment of the full enjoyment of society, 

or an enhanced value to the society the family would have enjoyed. It was not error for the 

trial court to allow the defendant=s evidence. 

For the foregoing reasons, the judgment of the circuit court of Will County is 

reversed and the cause remanded for a new trial. 

Reversed and remanded. 

SCHMIDT, P.J., concurring in part and dissenting in part. 

BARRY, J., concurs. 

 PRESIDING JUSTICE SCHMIDT, concurring in part and dissenting in part: 

The majority correctly states that the determination of whether prejudice has 

occurred as a result of extrajudicial evidence entering the jury room rests in the sound 

judicial discretion of the court after it has considered all the facts and circumstances. Slip 

op. at 7. I am of the opinion that the trial court did not abuse its discretion with respect to 

its findings regarding the extrajudicial evidence and, therefore, respectfully dissent. This 

court has said many times that an abuse of discretion occurs only when no reasonable 

person would take the view adopted by the trial court. In re Marriage of Sawicki, 346 Ill. 

App. 3d 1107, 806 N.E.2d 701 (2004). In determining whether a trial court abused its 

discretion, the question is not whether we agree with the trial court but, rather, whether the 

trial court, in the exercise of its discretion, acted arbitrarily without the employment of 
14 

conscientious judgment or, in the view of all the circumstances, exceeded the bounds of 

reason and ignored recognized principles of law so that substantial injustice resulted. In re 

Marriage of Lee, 78 Ill. App. 3d 1123, 398 N.E.2d 126 (1979). If reasonable persons could 

differ as to the propriety of the action taken by the trial court, then it cannot be said that the 

trial court abused its discretion. In re Marriage of Lee, 78 Ill. App. 3d at 1127. 

The trial court expended much time and effort in reaching its decision that the jury 

was not prejudiced by the extrajudicial evidence. The record reveals that Judge Lorz did a 

superb job of reviewing the facts and evidence admitted in the case, case law regarding 

extrajudicial evidence, the actual extrajudicial evidence that reached the jury, and the 

parties' arguments prior to arriving at his decision. To say that he acted arbitrarily without 

the employment of conscientious judgment or he exceeded the bounds of reason and 

ignored recognized principles of law is unsupported by the record in my opinion. 

Judge Lorz determined that it was obvious that no prejudice resulted from the two 

jurors' knowledge of the two articles in question. Ten of the twelve jurors noted in their 

questionnaires that they did not read the articles which contained the extrajudicial 

information. Two of the jurors admitted reading the articles, but noted they did not "discuss 

any of the newspaper articles *** with any other jurors." The trial court could certainly have 

reasonably concluded that the winning party met its burden of proving no prejudice to the 

losing party occurred where the complained-of extrajudicial articles were not read by 10 

jurors and not discussed by the two jurors who admitted reading them. At a minimum, 

reasonable minds could differ regarding whether prejudice occurred, in which case 

affirmation is mandated, given the abuse of discretion standard. 

Judge Lorz's careful analysis, however, did not end there. He expended a great 
15 

deal of energy to review the content of the articles in contrast to the content of the losing 

party's evidence. His analysis resulted in a finding that the two were substantially similar. 

In other words, he found that there was nothing contained in the articles that would 

prejudice the losing party given the evidence the losing party put on to support its case-inchief. I agree. 

The majority states that the articles bolster "the idea that at the lower end of the 

gestational age spectrum discussed, premature babies were unlikely to survive." Slip op. at 

8. Specifically, what the articles say is: 

 "At 24 weeks, she said, she and her husband were faced with 

a decision: Either deliver the baby, which would almost certainly die 

at that point because of its prematurity, or continue with the pregnancy 

and hope the baby continued to live. 

 Babies can even survive born at 20 weeks, weighing only three-quarters 

of a pound, she said, although survival rates are low for these very early 

babies. 

 Mathewson said a 23-week baby that weighs one pound has only a five 

to 10 percent chance of making it. But a 27-week preemie that weighs two 

pounds, a birth that isn't all that uncommon these days, she says, has a 90 

percent survival rate. 

 Mathewson said that the babies are particularly susceptible to the brain 

injuries when they are younger than 32 weeks, when the brain's blood vessels 

are very fragile." 

The plaintiff's own expert, Dr. Charles Bird, stated that if the baby "is only 23 weeks 
16 

[then] the poor little soul is not going to survive for obvious reasons." The trial court 

examined that specific testimony in light of the statements made in the extrajudicial articles. 

 While the majority correctly states that the age of the fetus was disputed, it is undisputed 

that the evidence put forth by the losing party indicated that if the fetus was, in fact, 23 

weeks old, then the chances of it surviving were incredibly slim. Nothing in these articles 

states any differently. In fact, the statement in the articles that "babies can even survive 

born at 20 weeks, weighing only three-quarters of a pound," arguably helped the plaintiff's 

case. 

The trial judge acknowledged, as does the majority, that once the losing party shows 

that extrajudicial information which relates to a crucial issue in the case reaches the jury, 

the winning party then has the burden of proving that the information did not prejudice the 

losing party. People v. Collins, 351 Ill. App. 3d 179-80. Again, as the majority correctly 

states, the determination of whether prejudice has occurred rests in the sound judicial 

discretion of the trial court after it has considered all of the facts and circumstances. Van 

Hattem, 308 Ill. App. 3d at 130. 

I simply disagree with the majority's conclusion that the results of the process 

engaged in by the trial court did not satisfy the winning party's burden to demonstrate that 

no juror was prejudiced by the extrajudicial materials. Ten jurors denied reading the 

materials. The two jurors that admitted reading the materials denied discussing them with 

anyone. The materials themself contain no substantive information that conflicts with the 

losing party's own expert's testimony. If anything, the articles substantively help the losing 

party's case. Given the fact that the articles substantively support the losing party's expert 

testimony, I fail to see how they could prejudice the losing party. There was nothing in the 
17 

material that plaintiff would have refuted had the material been properly before the jury. 

Given these facts, I disagree with the majority's assertion that no reasonable person could 

take the view adopted by the trial court and would therefore affirm. 

Furthermore, I find reversible error was not committed when the jury was instructed. 

 The jury rendered a general verdict on liability in favor of defendant. "[I]t is well 

established that where a defendant is found not liable, alleged errors pertaining solely to 

damages do not afford grounds for a reversal.>>" Dabros v. Wang, 243 Ill. App. 3d 259, 

269, 611 N.E.2d 1113, 1120 (1993) quoting Schuchman v. Stackable, 198 Ill. App. 3d 209, 

231 (1990). 

Finally, I concur with the majority's opinion that Garcini's testimony was proper. I 

would affirm the trial court on all issues.